Mining  Rights  in  Colorado, 

SIXTH    EDITION- 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

LAW  LIBRARY 


I 


I 


Mining  Rights 


IN  COLORADO. 


LODEAPPUGER  CLAIMS 


I 


POSSESSORY    AND  PATENTED, 

From  the  District  Organizations  to 
THE  Present  Time. 


STATUTES  IN  FULL. 

^Prospecting,  LandOffice,  Incorporations, 
Forms,  Decisions,  Etc. 


R.  S.  MORRISON  AND  JACOB  FILLIUS. 

OF  THE  COLORADO  BAR, 


SIXTH     EDITION, 

REVIBEO  AND  ENLARGED. 

DENVER: 
CHAIN,  HARDY  cfc  CO. 

1S,S6. 


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M8341 


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COPYRIGHT,  1887, 
BY 

R.  S.  MORRISON. 


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|\r^S!TY  OF  SOUTHERN  Ca'TORNIA  LIB:1ARY 


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MINING  RIGHTS. 


MIMXG  DISTRICT  RULES. 


Origin  ofthe  Mining  Districts  and  of  the  Dis- 
trict Rules. — Before  the  organizatiou  of  Colorado  as  a 
Territory,  (February  28,  1861),  the  principal  miueral  sec- 
tions had  been  settled  and  a  system  of  miners'  laws  estab- 
lished, the  outlines  of  which  have  been  the  basis  of  all 
subsequent  legislation. 

The  country  was  divided  into  "Mining  Districts,"  some 
less  than  a  mile  square  and  some  quite  extensive,  which 
have  become  permanent  geogranhical  divisions,  and  take 
the  place  of  townships  and  sections  in  describing  the  situ- 
ation of  real  estate  of  all  kinds  in  the  mining  counties. 

There  are  at  least  two  hundred  in  Clear  Creek,  Gilpin^ 
Boulder,  Summit,  Park  and  Lake,  but  the  names  of  some 
of  the  less  important  have  been  dropped,  and  are  familiar 
only  to  early  settlers. 

Each  District  Adoptetl    a    Separate   Code  of 

Reiiulations,  and  elected  a  Recorder,  who  kept    a  record 

-*-^  of  claims  and    transfers ;  and   usually  a  judge   and  other 

.\  • 

.  \  'SoTv:—Con(roctions—R.  5.— Revised  Statutes  of  the  Vnited 

f*^  States,  edition  of  187S. 

A.  C. — Act  of  Congress. 

O.  &'.— (ieneral  Statutes  of  Colorado,  Ed.  i>f  ISs;^. 

Af.  i?.— M(iriis<>n"s  Milliner  Keixirts. 

//.  O.— Copp's  Land  Uwiier,  Ac,  &c. 


4  DISTRICT  RULES. 

officers  who  carried  out  the  mining  rules  and  also  enforced 
the  decisions  of  the  jury  of  miners  or  the  miners'  meeting. 

The  written  regulations  usually  first  defined  the  name 
aud  boundaries  of  the  district;  second,  the  number  and 
kind  of  officers  to  be  elected  from  time  to  time ;  and  then 
I)roceeded  to  designate  what  number  of  feet  should  consti- 
tute a  claim  in  that  district,  the  amount  of  surface  allowed, 
the  amount  of  work  required  to  hold  a  claim,  &c.,  and 
sometimes  extended  further,  to  the  mode  in  which  mining 
cont;-OYersies  and  other  difficulties  should  be  settled. 

These  district  regulations  were  recognized  at  the  first 
session  of  the  Territorial  Legislature  and  by  all  the  subse- 
quent Acts  of  Congress  ;  when  not  in  conflict  with  statutory 
law,  especially  in  cases  arising  out  of  the  early  discoveries, 
they  may  still  be  regarded  as  in  force  and  occasionally  im- 
portant. They  are  supposed  to  be  filed  at  present  in  the 
office  of  the  county  recorder,  and  a  search  among  them  is 
sometimes  necessary  to  the  lawyer  and  always  refreshing 
to  those  who  are  curious  in  regard  to  pioneer  customs. 

Scope  of  their  Legislation. — This  system  of  the 
miners  was,  of  course,  molded  upon  customs  already  es- 
tablished in  California,  and  many  of  the  California  mining 
rules  were  identical  with  provisions  of  the  Mexican  law. 

The  subdivision  of  a  deposit  into  claims ;  the  allow- 
ance of  an  additional  "claim"  to  the  discoverer  ;  the  stak- 
ing of  claims;  the  requirement  of  a  discovery  shaft  ;  for- 
feiture for  neglect  to  work,  aud  various  other  prominent 
features  are  found  to  be  set  forth  at  large  in  the  Spanish 
and  Mexican  codes. 

But  their  day,  practically,  has  ended  and  given  place 
to  uniform  legislation  ;  and,  notwithstanding  their  recog- 
nition in  Acts  of  Congress,  they  seem  to  be  always   made 


brSTKICT  IIULES.  b 

subject  to  Stiito  or  Territorial  laws,  and  void  when  iu  oppo- 
sition thereto. 

From  the  defects  of  these  original  regulations  and  the 
want  of  an  exact  and  uniform  mining  code,  have  sprung 
mosc  of  the  poiiits  of  litigation  now  coiiimonlj  spoken  of, 
and  for  which  the  miners  have  only  themselves  to  blame. 
In  some  districts  lawyers  were,  by  their  own  laws,  forbid- 
den to  reside  or  practice. 

^nsitances  nf  their  Form    ami    Contents'. — The 

rules  of  the  various  districts  being  more  or  less  uniform  iu 

their  m«de  of  expression,  and  in   the  matters  regulated  by 

them,  we  give  a  citation  of  rules  from  sundry  districts,  from 

which  some  idea   of  their    scope   and   intention   may    be 

formed. 

Bounfiiirii's.— This  district  shall  he  deliiiod  mid  bounded  as 
follows  :  (^oniinencing  at  the  head  of  the  canyon  on  the  Las  Ani- 
mas River  at  the  lower  end  of  what  is  called  and  known  as  Ba- 
ker's Park,  and  thence  running  east  to  the  summit  of  the  main 
(lividiiiii  range,  and  then  foUoiving  said  range  around  so  as  to  in- 
clude all  the  waters  of  said  river,  to  the  place  of  beginning.— 
Art.  2,  Las  Atiimas  District. 

SijiP  of  Claims  —AH  claims  made  on  lodes  l)y  discovery  shall 
be  200  feet  long  and  50  feet  wide  ;  all  pre-emption  claims  100  feet 
long  and  -'lO  feet  wide  ;  all  discovery  claims  on  patch  diggings 
shall  he  100  feet  s<iuarc  :  pre-emptioii  claims  100  feet  square  :  all 
discovery  claims  on  gulch  digginus  shall  be  100  feet  long  and  from 
bank  to"l)ank  ;  pre-emption  claims  shall  be  the  same  ;  all  water 
claims  and  steam  mill  sites  shall  be  300  feet  long  up  and  down 
the  stream,  and  ir)0  feet  wide  ;  all  claims  shall  be  taken  by  num- 
bers, commencing  at  the  discovery  and  running  each  way. — Art. 
8,  Grand  Island  District. 

Value  of  Liibor.— There  shall  be  allowed  for  a  day's  labor  on 
all  lodes,  the  following  prices:  For  working  in  loose  rock  and 
earth,  twelve  dollars  i>er  day  ;  for  hard  rock,  such  as  will  re- 
quire powder  and  ilrills,  sixteen  dollars  per  day. — Resolutign 
:;,  Las  Animas  District. 

TiOilo  Noticp.— That  all  notices  on  lodes  be  written  in  plain 
English  and  posted  in  some  conspicuous  place  on  the  lode. — Res- 
olution 8,  Las  Animas  District. 

Sheriff —It  shall  be  the  duty  of  the  Sheriff  to  serve  all  i>apers 
issued  by  the  President,  and  to  be  a  General  Peace  Oflicer.— ^j-<. 
6,  Coral  Distnct. 


DISTRICT    RULES. 


Water. — Iii  all  gulches  or  ravines  where  water  may  be  scarce, 
the  oldest  claimants  shall  have  preference  and  priority  ol'  right 
to  water. — Art.  5,  Downieville  District. 

Fictitious  Locators. — Be  it  further  enacted,  that  no  claims 
shaU.  be  regarded  as  valid,  pre-empted  or  recorded,  in  fictitious 
or  false  names,  nor  by  persons  not  residents  of  the  Territory,  ex- 
cept the  same  are  made  in  good  faith.— jSec.  13,  Lincoln  District. 

Forfeiture.— Any  person  absenting  himself  from  this  mining 
region  twelve  months,  shall  forfeit  liis  claims,  except  when  lliey 
are  represented  by  an  agent. — Sec.  H,  Iowa  District. 

Old  I)ebts.~No  suits  shall  be  brought  in  the  miners'  court  for 
indebtedness  contracted  in  any  other  State  or  Territory,  Accept 
by  consent  of  all  the  parties  interested,  and  no  execution  shall 
be  collected  on  a  payment  rendered  on  such  indebtedness,  ex- 
cept as  hereinbefore  provided.— jS^ec.  9,  Banner  District. 

Duties  of  Kecorder.— It  shall  be  the  duty  of  the  Recorder 
safely  to  Iceep  the  Records  of  the  District,  and  to  record  all  papers 
upon  the  payment  of  his  fees.  To  act  as  secretary  at  all  public 
meetings  of  the  District,  and  by  virtue  of  liis  office  as  Treasurer, 
to  keep  all  moneys  of  the  District  paid  to  him,  subject  to  the  draft 
of  tlie  President ;  also,  to  keep  all  vouchers,  so  that  at  any  time 
he  may  be  able,  when  called  upon,  to  exhibit  the  financial  con 
dition  of  the  District.— C/iap.  5,  Sec.  1,  Orifflth  District. 

Murder.— Any  person  guilty  of  willful  murder,  upon  convic- 
lion  thereof,  shall  be  hung  by  the  iTeck  until  lie  is  dead — Chap. 
16,  Sec.  1,  Id. 

Manslaughter.— Any  person  guilty  of  Manslaughter  or  Homi- 
cide, shall  be  punished  as  a  jury  of  twelve  men  may  direct.— 
Chap.  16,  Sec.  2,  Id. 

Larceny. — If  any  person  or  persons  shall  be  guilty  of  stealing 
any  property  whatever  in  tills  District,  and  he  ur  tliey  be  found 
guilty  by  a  majority  of  a  jury  of  twelve,  chosen  to  try  his  or  their 
guilt  or  innocence,  he  or  they  shall  be  sentenced  to  immediately 
restore  the  property  stolen,  and  pay  to  the  party  injured  all  dam- 
ages sustained  directly  or  indirectly  in  con.sequence  of  the  tlieft,, 
and  in  case  the  guilty  party  shall  not  so  restore  and  make  good 
all  the  damages  as  aforesaid,  the  injured  party  may  take  suffi- 
cient proprrty  of  the  ilefendaiit  found  in  this  District,  to  satisfy 
all  damagi',  and  dispose;  of  it  in  any  way  he  may  deem  proper, 
and  tile  del'oiidMiit  sliall  nlso  l)e  banished"  forever  from  this  Dist- 
rict, and  lie  failing  to  leave  immediately  on  notice,  shall  receive 
not  less  than  five  nor  more  than  twenty-nine  lashes,  and  in  case 
the  value  of  the  property  stolen  be  over  one  hundred  dollars,  he 
shall  be  hanged  Iiy  the  I'leck  until  he  is  dead  :  the  injured  jjarty 
may  proceed  to  retake  liis  projierty  and  remunerate  liim.self  for 
damage  sustained  as  above.— ^4?-A  !),  Lower  Union  District. 


DISTRICT    RULES.  7 

Attempt  to  Kegiilatc  Aiiuiial  Ijabor. — Such  reg- 
lations  as  the  forogoing  Resolution  3,  of  Las  Auimas  Dist- 
rict, are  manifestly  void.  The  United  States  law  requires 
a  certain  amount  in  value  of  labor  or  improvements,  and 
this  value  cannot  be  lessened  by  an  arbitrary  scale.  They 
might  with  as  much  reason  have  fixed  at  once  a  single  foot 
of  sinking  as  the  full  equivalent  of  the  $100  required  by 
law. 

NcAV  Districts.— Since  the  congressional  mining  Act 
of  187-2,  the  old  district  organizations  are  no  longer  pre- 
served and  had  in  fact  become  more  or  less  obsolete  for 
years  prior  to  that  Act.  New  Districts  have  been  formed 
by  miners'  meetings,  but  only  to  the  extent  of  giving  a 
name  and  fixing  general  boundaries  to  a  locality.  Any  at- 
tempt to  revive  old  or  create  new  district  rules  would  be 
only  productive  of  confusion,  as  they  are  by  the  terms  of 
the  Congressional  law  (R.  S.  U  2319,  2324)  made  subserv- 
ient to  both  State  and  United  States  legislation.  Their 
original  recognition  by  territorial  law  is  expressed  in  i^g 
2677  and  239G  of  the  General  Statutes. 

A  mining  title  may  be  proved  without  either  district 
organization  or  proof  of  district  rules. — Golden  Fleece  Co.  v. 
Cable  Co.,  1  M.  R.,  120. 

Judicial  Decision!?  as  to  District  Ilules. — Where 
in  ejectment  for  a  mining  claim  the  plaintiff  has  described 
the  same  as  located  under  district  rules,  he  may  recover 
without  proof  of  the  existence  of  such  rules  by  evidence  of 
his -prior  possession  and  the  entry  of  defendant ;  but  if  his 
prima  facie  case  on  possession  is  negatived ].by  any  title 
proved  by  defendant,  he  must  then  show  the  existence  of 
the  district  rules  and  his  compliance  therewith  before  he 
can  introduce  his  location  or  record  made  'under  such 
rules. — Sears  v.  Taylor,  n  M.  R.,  318. 


8    .  DISTRICT  RULES. 

Courts  will  not  enquire  into  the  regularity  of  the  mode 
by  which  district  rales  have  been  enacted,  except  upon 
allegation  of  fraud,  or  other  like  cause. — Gore  v.  McBruyer, 
1  M.  R.,  645. 

Where  the  evidence  renders  it  doubtful  whether  the 
written  laws  of  a  district  are  in  force,  both  the  written 
laws  and  parol  proof  of  the  mining  customs  may  be  ofiered 
in  evidence, — Golman  v.  Clements,  5  M.  R.,  247. 

A  mining  regulation  cannot  restrict  the  number  of 
claims  which  a  party  may  hold  by  purchase. — Prosser  v. 
Parks,  4  31.  R.,  4.52. 

A  district  rule  cannot  limit  the  s'ize  of  a  claim  duly 
located  before  such  rule  was  adopted. —  Table  3ft.  Co.  v. 
Stranahan,  9  M.  R.,  465. 

A  right  to  hold  a  claim  may  be  forfeited  by  failure  to 
comply  with  the  district  rules.  St.  John  v.  Kidd,  4  M.  R., 
454.  But  not  unless  the  rule  itself  so  expressly  provides. — 
Bell  V.  Bed  Rock  Co.,  1  31.  R.,  45. 

A  valid  district  rule  may  exist  and  be  proved,  although 
not  found  among  the  other  written  rules  of  the  district. — 
Harvey  v.  Ryan,  AM.  R.,  490. 

A  custom,  reasonable  in  itself,  and  generally  observed, 
will  prevail  against  a  written  mining  regulation  which 
has  fallen  into  disuse. — Id. 

The  existence  of  a  district  mining  law  is  a  question  of 
fact  for  the  jury. — Id. 


CONGRESSIONAL  RECOfiNITION   OF  MINERS' 
RIGHTS. 


liicenxe  to  Appropriate  the  Pnhlic  Domain.— R.  S."?  910.— No 

possessory  iictioii  between  persons,  in  any  court  of  the  United 
States,  for  tlie  recovery  of  iiny  mining  title,  or  for  damages  to  any 
such  title,  shall  be  aftected  by  the  fact  that  the  paramount  title 
to  the  land  in  wViich  such  mines  lie  is  in  the  United  States  ;  but 
each  case  shall  be  adjudged  by  the  law  of  possession.— §  9,  A.  C, 
Feb.  27,  1860. 

.  License  Under  Coni;ri'ssional  Act  of  1.S66.— ^  1.— The  mineral 
lands  of  the  public  domain,  botli  surveyed  and  unsur\'eyed,  are 
hereby  declared  to  be  free  and  open  to  exploration  and  "occupa- 
tion by  all  citizens  of  the  United  States,  and  those  who  have  de- 
clared their  intention  to  l)ecome  citizens,  subject  to  such  regula- 
tions as  may  be  prescribed  by  law,  and  subject  also  to  the  local 
customs  or  rules  of  miners  in  the  several  mining  districts,  so  far 
as  the  same  may  not  be  in  conflict  with  the  laws  of  the  United 
States  -4.1,  A. 'C,  July  20,  1861).    Repealed  May  10,  1872. 

Iiicens«  Under  Present  Congressional  Law.- R.  S.  ?  2319.— All 
valuable  mineral  dei)Osits  in  lands  belonging  to  the  United 
.'States,  botli  surveyed  and  unsurveyed,  are  hereby  declared  to  be 
free  and  open  to 'exploration  and  purchase,  and  the  lands  in 
which  they  are  found  to  occuiwuion  and  purchase,  by  citizens  of 
the  United  States  and  those  who  have  declared  their  intention 
to  Ijecome  sucli,  under  regulations  prescribed  by  law,  and  accord- 
ing to  the  local  customs  or  rules  of  miners  in  the  several  mining- 
districts,  so  far  as  the  .'<ame  are  applicable  and  not  inconsistent 
with  the  laws  of  the  United  States. —iSec.  1,  A.  C,  May  10, 1872. 

Section  910  contains  the  first  Congressional  recogni- 
tion of  the  fact  that  the  mineral  lauds  of  the  United  States 
were  being  appropriated  by  its  citizens. 


Note.— The  appropriate  Sections  of  Territorial,  State  and 
Congressional  Statutes  are  printed  in  small  type  under  the  sev- 
eral headings  in  the  order  of  time  at  which  they  took  effect. 

The  full  text  of  the  State  and  Congressional  Acts  now  in 
force  is  separately  printed,  at  a  later  page. 


10  U.S.  LICENSE. 

From  the  time,'  however,  of  the  discovery  of  gold  in 
Caiifornia,  the  government  had  tacitly  recognized  the  oc- 
cupation of  its  mining  lands  as  such,  and  withheld  them 
from  survey  and  pre-emption. 

Judicial  Recognition. — The  judiciary  of  California 
and  all  the  States  and  Territories  on  the  Pacific  slope  had 
recognized  the  "Miner.s'  Title"  as  property  entitled  to  pro- 
tection, and  they  were  followed  by  the  Supreme  Court  of 
the  United  States  to  the  same  effect. — Sparrow  v.  Strong,  2 
M.  R.  320. 

Consecutive  Acts  of  '66,  '70  and  '72.— In  1866 
the  first  Act  was  passed  looking  to  the  absolute  disposition 
of  mineral  veins.  In  1870  a  Supplemental  Act  was  passed 
smbracing  placers.  In  1872  these  Acts  were  revised  and 
the  Act  of  Congress  of  May  10  of  that  year,  now  found  in 
Chapter  6,  Title  32,  of  the  Revised  Statutes  of  the  United 
States,  is,  with  slight  change,  the  Congressional  law  now  in 
force. 


LEGAL  STATUS  OF  POSSESSORY  CLAIMS. 


Protected  by  Action  at  Law.— G.S.,  ^  2681.— Any  person  settled 
upon  liny  of  the  public  lands  belonging  to  the  United  States  mav 
maintain  trespass  quare  clniisum  freyit.  trespass,  ejectment,  for- 
cible entry  and  detainer,  unlawful  detainer  and  forcible  detainer, 
for  injuries  done  to  the  possession  thereof.— iYoy.  1,  I81I. 

Title  in  the  United  States.— G.  S..  i,  268C.— Nothinpr  in  this 
chapter  contained  shall  be  construed  to  denv  the  right  of  the 
United  States  to  dispose  of  any  lands  in  this  State  ;  nor  shall  the 
fact  that  the  title  to  any  lots,  lands,  lodes  or  mining  claims  hath 
not  jia.ssed  from  the  United  States,  be  any  bar  to  the  recovery  of 
the  plaintiff  in  either  of  the  actions  specified  in  section  eight  of 
this  chapter.— i\''ou.  1,  1861. 

The  above  sections  are  parts  of  Acts  of  the  first  session 
of  the  Territorial  Legislature.  It  is  thus  seen  that  the 
miner's  possessory  claim  has  been  always  recognized  by 
Colorado  Statute  as  the  subject  of  protection  by  legal  pro- 
cess. 

Such  an  estate,  dependent  upon  possession,  is  con- 
versely one  which  may  be  lost  by  abandon  meat.— Jlfern^t  v. 
Judd.  6  M.  R.,  G2 ;  Mallett  v.  Uncle  Sam  Co.,  1  M.  R.,  18. 

It  is  a  freehold ;  that  is  to  say,  an  estate  which  passes 
to  the  heir.— Harris  v.  Equator  Co.,  12  If.  R.,  178;  Merritt 
V.  Judd,  6  M.  R.,  (52. 

It  is  declared  by  Statute  to  be  real  estate,  (G.  S.,  j^  225), 
and  is  conveyed,  .sued  for  and  otherwise  treated  in  all 
respects  as  the  property  ot  the  occupant,  subject  only  to  the 
paramount  title  of  the  United  States.— G.  S.  ^iJ  2681,  2685, 
2686. 

Not  a  Vested  Estate.— But  as  against  the  United 
States,  it  was  not  in  the  power  of  the  State,  and  Congress 


12  POSSESSORY  TITLE. 

has  not  aiiiiareutly  ottered  by  either  of  the  mining  Acts, 
before  entry  and  payment,  to  give  the  miner  technically 
more  than  a  license — not  a  right  of  that  kind  known  as 
vested  or  absolute  estates — as  against  the  United  States ; 
nor  one  which  the  government  might  not  take  away  if  it 
chose. —  To  tSemife  Case,  15  Wall,  77. 

This  question  becomes  of  practical  importance  in  con- 
sidering the  ijower  of  Congress  to  legislate  so  as  to  act  re- 
trospectively upon  claims  already  located.  If  the  miner 
has  no  vested  estate  they  can  so  legislate  without  limita- 
tion. They  may  totally  repeal  the  present  mining  law  and 
compel  claims  already  located  and  not  entered  for  patent, 
to  assume  an  entirely  difi"erent  status.  The  Act  of  1872, 
requiring  annual  labor  upon  claims  located  under  the  Act 
of  1866,  is  an  exercise  of  this  power.  If  claims  taken  up 
under  the  Actof  i86()  were  vested  estates,  then  the  provision 
requiring  labcr  thereon  would  be  void. 

The  Miner's  Title  a  Qualified  or  Conditioned 
One. — A  party  holding  a  possessory  title  is  not  compelled 
to  go  to  patent  nor  to  pay  the  government  for  his  use  of 
the  land,  and  it  is  not  to  be  presumed  that  the  government 
would  i)lace  itself  in  a  position  where  its  citizens  could  en- 
joy the  land  as  owners  without  its  being  in  the  power  of 
the  United  States  ultimately  to  compel  the  payment  of  the 
purchase  money  ;  this  power  it  does  reserve  by  passing  no 
title  until  the  claimant  enters  the  land  for  patent. 

Such  a  decision  as  in  the  case  of  Robertson  v.  Smith  7  M. 
R.,  196,  that  the  permission  to  occupy,  given  by  the  mining 
acts,  is  equivalent  to  a  patent,  however  acceptable  to  the 
miners,  is  only  a  judicial  abuse  of  terms  causing  a  fatal  re- 
liance to  be  placed  by  the  honest  but  ignorant  claimant, 
upon  a  title  which  is  only  perfected  by  the  Letters  Patent 
of  the  United  States. 


rOSSESSOKY    TITI.K.  13 

These  observations  are  uot  made  in  justification  of  the 
equity  of  tlie  Statute,  nor  in  derogation  of  the  miners' 
claims,  but  as  the  interpretation  of  the  Acts  as  we  tind 
them,  and  to  correct  a  wide  spread  but  mistaken  idea  that 
the  miner  has  a  safe  and  unimpeachable  title  so  long  as  he 
does  his  annual  labor,  M'ithout  any  necessity  for  his  apply- 
ing for  government  patent. 

Distinctions  Between  Mines  and  Other 
Realty. — The  only  important  distinctions  taken  between 
mining  claims  and  other  classes  of  real  estate,  under  Con- 
gressional and  State  Laws,  are 

1.  Special  provisions  as  to  taxation. 

2.  The  title  being  first  acquired  by  possession,  it  may 
be  lost  by  acts  amounting  to  discontinuance  of  possession, 
that  is,  by  abandonment. 

3.  Such  possessory  title  is  conditioned  upon  compli- 
ance with  local  rules,  and  upon  the  performance  of  annual 
labor. 

4.  The  mode  of  perfecting  patent  in  the  U.  S.  Land 
Office  is  wholly  different  from  that  regulating  pre-emption 
or  homestead  grants  upon  agricultural  lands. 

5.  A  special  statute  exists  to  prevent  the  forcible  dis- 
possession of  claimants  in  occupation  of  mines,  which  does 
not  extend  to  other  classes  of  real  estate. 


SCHOOL  CLAIMS. 


Fully  one-half  of  all  the  sections  of  the  old  Territorial 
Statutes  on  the  subject  of  mines,  was  taken  up  by  a  persist- 
ent attempt  to  force  a  "school  claim"  on  each  location. 
The  whole  effort  was  in   violation   of  the  Organic  Act,  and 


14  SCHOOL  CLAIMS-SOLDIERS'  CLAIMS. 

has  been  held  absolutely  null  and  void  as  well  by  our  own 
courts,  as  by  the  land  office,  (Copp.  44),  and  repudiated  by 
the  miners  as  an  attempt  to  put  the  whole  cost  of  schools 
on  a  class  of  men,  who  as  a  rule,  were  not  persons  with 
families. 

By  Act  of  1862,  claim  Xo.  3,  East  or  West,  was  to  be  set 
apart  for  schools  ;  by  Act  of  1866,  one  side  claim  on  each 
«nd  of  the  discovery  claim  of  1400  feet  was  to  be  recorded — 
100  feet  for  schools  and  100  feet  for  disabled  miners. 


SOLDIERS'  CLAIMS. 


By  Acts  of  1861,  1864  and  1866,  claims  belonging  to  sol- 
diers were  protected  from  forfeiture  during  enlistment  and 
for  two  years  after  ;  they  were  also  allowed  to  locate  and 
record  claims  by  proxy;  and  their  claims  were  protected  by 
the  first  mining  Act  ever  passed,  from  sale  on  judgment  in 
miners'  court.  Their  practical  importance  has  of  course 
ceased,  and  there  is  no  law  in  force  which  would  extend  to 
u  soldier  hereafter  enlisting. 


LENGTH  OF  LODE  ('LAIMS  LOCATED  BEFORE 
MAY  10,  1S72. 


100-Foot  Act  of  1861.— Tha  term  claim  as  used  in  the  min- 
ing portions  of  this  State,  when  applied  to  a  lode,  shall  be  con- 
stmert  to  mean  one  hundred  feet  of  the  length  of  such  lode,  sur- 
face measurement,  of  the  entire  width  of  such  lode  or  crevice  : 
Provided,  That  in  any  case  where  the  regulations  of  any  mining 
district  have  heretofore  detined  the  term  claim  to  mean  other 
than  as  above  defined,  nothing  in  this  chapter  shall  be  so  con- 
strued as  to  impair  the  rights  of  any  person  or  persons  holding 
claims  under  such  regulations  as  may  have  been  heretofore  estab- 
lished by  the  people  of  the  district  in  which  such  claim  or  claims 
are  situated.— JVov.  7,  1861. 

ICOO-Koot  Act  of  1864.—^  1.— That  all  mineral  and  quartz 
lodes,  hereafter  discovered,  shall  cease  and  terminate,  so  far  as 
thev  have  any  legal  existence,  at  the  distance  of  eight  hundred 
feet  in  either  direction  (on  the  line  of  the  lode),  from  the  center 
of  the  discovery  hole.— il/arcTi  11,  18fi4.     Repealed  Jan.  10,  1808. 

1400- Foot  Act  of  I8«G.— 5, 1.— That  hereafter,  each  and  every 
person  who  shall  discover  anv  mineral  lode  or  vein  of  gold  bear- 
ing ore,  or  of  silver  or  other  valuable  metals  in  this  Territory, 
shall,  bv  virtue  of  such  discoverv,  be  entitled  to  take,  hold  and 
possess  fourteen  hundred  feet,  lineal  measure,  of  such  lode  or 
vein,  of  which  the  discoverv  shaft  shall  be  the  center  therof  ; 
and  said  fourteen  hundred  feet,  so  taken,  shall  be  known  and 
described  as  the  discoverv-  c\a.\m.— Feb' y  9, 1866. 

3000-Foot  Act  of  Congress  of  186fi.— §  4 —No  location  hereaf- 
ter made  sliall  exceed  two  hundred  feet  in  length  along  the  vein 
for  each  locator,  with  an  additional  claim  for  discovery  to  the 
discoverer  of  the  lode,  with  the  right  to  follow  such  vein  to  any 
ileY)th,  with  all  its  dips,  variations  and  angles,  together  with  a 
reasonable  nuantitv  of  surface  for  the  convenient  working  of  the 
same  as  (ixed  by  local  rules:  And  provided  further,  Ihat  no 
person  mav  make  more  than  one  location  on  the  same  lode,  and 
not  mori'  than  three  thousand  feet  shall  be  taken  in  any  one 
claim  by  any  association  of  persons.—^.  C.Jtdy  26,  186C.  Re- 
pealed May  10,  1872. 

Territorial  Act  ConformiiiK  with  Above.— G.  L.— ?  1808.— No 
statntorv  law  of  the  State  of  Colorado,  shall  be  so  construed  as  to 
prohibit  the  location  of  three  thousand  feet  or  less  on  any  vein  or 


16       LENGTH  OF  OLD  LODE  CLAIMS. 

lode  iu  the  manner  prescribed  in  Section  Four  of  an  Act  of  Con- 
gress, approved  July  twenty-sixtli,  one  thousand  eight  hundred 
and  sixty-six,  entitled  "An  Act  granting  the  right  of  way  to  ditch 
and  canal  owners  over  the  public  lands,"  and  for  other  purposes  ; 
nor  to  prejudice  any  rights  to  obtain  patents  for  the  same,  as 
provided  iu  said  act.— >fe6'2/ 11,  1870. 

G.  L.  §  1809.— All  pre-emptions  and  locations  of  three  thou- 
sand feet,' or  less,  on  any  vein,  lode  or  ledge  made  since  the  pas- 
sage of  the  said  Act  of  Congress,  and  conforming  to  the  same, 
shall  be  good  and  valid.— /d. 

G.  L.  §  1810.— Nothing  in  this  Act  shall  be  so  construed  as  to 
prejudice  anv  rights  acquired  prior  to  the  passage  of  this  Act. — 
Id. 

Early  Liocations  of  100  Feet. — The  usual  leugth 
under  the  district  rules  was  100  feet  or  200  feet ;  by  the  Act 
of  1861,  100  feet  became  the  general  lave,  but  this  means 
strictly  the  length  of  one  claim  on  the  lode,  for  invariably 
many  claims  were  recorded  upon  each  side  of  the  original, 
or  discovery  claim. 

This  practice  began  while  the  district  rules  were  in 
full  force.  The  discoverer  was  restricted  to  his  discovery 
claim,  and  generally  one  additional  claim,  but  as  soon  as 
the  discovery  claim  was  recorded,  any  person  could  obtain 
a  claim  by  recording  100  feet  to  the  right  or  left  of  the  dis- 
covery, as  claim  No.  1,  east;  No.  2,  east;  No.  1,  west,  &c., 
indefinitely.  These  claims  are  supposed  to  be  at  least  staked 
oflF  on  the  ground,  but  no  discovery  hole  was  required,  and, 
in  fact,  in  most  cases,  only  the  paper  reeord  was  made  and 
the  claims  seldom  pursued  further,  unless  developments  on 
the  discovery  claim  seemed  to  indicate  that  the  side  claims 
might  be  of  value.  Such  was  not  the  original  intention  of 
the  miners,  but  the  custom  degenerated  to  this  and  the  rec- 
ords of  hundreds  of  such  claims  remain,  whose  owners 
never,  perhaps,  did  any  work  upon,  or  ever  knew  the  exact 
situation  of  their  claims. 

This  privilege  to  locate  side  claims  was  soon  taken  ad- 
vantage of  by  the  discoverer,  who  procured  nominal  parties 


LENGTH  OF  OLD  LODE  CIiAIMS.  17 

to  record,  and  immediately  after  recording  to  convey  their 
•claims  to  him,  and  as  soon  as  the  A.  C.  1866  was  passed,  it 
became  the  universal  practice,  tlic  custom  as  it  already  ex- 
isted beinj,'  altered  only  in  this:  that  the  claims  vecre  no 
longer  numbered,  but  were  taken  together  as  a  joint  loca- 
tion by  a  sujiposed  association  of  fourteen  persons,  taking 
fifteen  claims  of  -JOO  feet  each,  oi  3,000  feet  in  all.  Further, 
after  the  passage  of  such  Act,  the  staking  of  the  lode  into 
its  several  chiinis  was  ahiiiidoned  altogether:  this,  also,  is 
to  be  observed,  that  before  the  Act  each  locator  usually  re- 
corded one  specific  claim,  in  which  the  other  locators  had 
uo  interest,  nor  he  in  theirs,  but  after  the  Act,  the  record 
showed  a. joint  locatio'.i  of  undivided  claims. 

The  1,000-Foot  Act  of  ISO-i  is  barliarously  word- 
ed, l)ut  can  scarcelj-  be  considered  as  lengthening  a  claim 
beyond  100  feet,  as  it  before  existed.  It  seems  to  have  been 
directed  against  the  practice  of  recording  so  many  claims 
upon  a  single  discovery,  making  them  invalid  beyond  the 
distance  of  800  feet  in  either  direction  from  the  centCT  of 
the  discovery  hole,  and  this  has  been  the  construction  un- 
der which  the  miners  always  acted.  A  full  record  under 
this  Act  would  tlien  consist  of  sixteen  claims,  each  100  feet 
in  length. 

It  may  indeed  be  doubted  whether  at  any  time,  as 
against  an  adverse  ioua./!(Ze  claim,  such  nominal  side  claims 
were  by  the  record  alone,  of  any  validity,  unless  actually 
possessed  and  defiucd  upon  the  ground  in  some  manner; 
Cons.  Rep.  Co.  v.  Lebanon  Co.  9  Colo.  343;  Becker  v.  Piigh,  Id. 
589:  Hess  r.  Winder,  12  M.  R.,  217;  but  the  practice  of  the 
land  office  is  to  patent  such  claims  without  inquiry,  if 
sufficient  development  for  patent  h  s  been  done  on  any  one 
of  them,  or  on  the  discovery. 


1  8  LENGTH   OF  OLD  LODE  CLAIMS. 

The  1,400-Foot  Act  of  February  9th,  1866,  was 

the  first  law  whicli  enlarged  the  length  of  a  claim,  strictly 
so-called,  and  attempted  to  dispense  with  the  practice  of  so 
many  persons  recording  nominal  claims  upon  a  single  dis- 
covery. 

These  1,400  feet  constituted  one  claim ;  one  person  was 
allowed  to  record  in  his  own  name,  and  side  claims  were 
prohibited.  This,  in  its  intentions,  was  the  best  of  the 
Territorial  Acts,  but  immediately  afterwards  came  the  A. 
C,  July  26,  of  the  same  year,  which  destroyed  its  practical 
operation. 

3,000-Foot  Claims,  1866  to  1872.— The  Act  of 
Congress  of  July  26tL,  1866,  reduced  a  claim  to  the  length 
of  200  feet,  allowed  an  additional  claim  to  the  discoverer, 
and  in  its  full  operation,  3,000  feet  to  the  discoverer  and 
his  thirteen  supposed  associates. 

Between  July  26,  1866,  and  February  11,  1870,  a  serious 
conflict  existed  between  the  Territorial  Statutes  and  this 
act^pf  Congress,  as  to  the  length  of  lode  claims. 

The  Territorial  Act  prohibited  locations  beyond  the 
extent  of  1,400  feet ;  the  Act  of  Congress  said  "not  more 
ihan"  3,000  feet  should  be  taken. 

The  Act  of  Congress  was  not  even  a  permission  ;  it  was 
merely  a  restriction  or  limitation,  and  it  is  by  no  means 
clear  that  the  Legislature  had  no  power  under  the  Act  of 
Congress  to  restrict  locations  to  less  than  3,000  feet,  and  so 
it  has  been  ruled  in  the  Land  Office  upon  a  similar  statute 
of  New  Mexico.  (Copp.  34.)  This  difficulty  will,  however* 
be  found  serious  only  in  litigated  cases,  as  it  is  the  practice 
of  the  office  to  give  a  patent  for  the  entire  3,000  feet,  with- 
out i)ressing  the  question. 

But  after  February  11,  1870,  and  until  May  10,  1872, 
3,000  feet  were  allowed  beyond  doubt,  the  Territorial  Act 


LENGTH  OF  OLD  LODE  CLAIMS.       19 

of  1870  being  made  for  the  purpose  of  conforming  to  the 
Congressional  law,  and  confirming  (or  attempting  to  con- 
firm) previous  locations  of  the  full  limit,  subject  to  such 
adverse  rights  as  might  have  intervened. 


LENGTH  OF  L01>E  CLAIMS  AT  VARIOUS  DATES. 


To  recapitulate  we  may  say  that 

1.  Prior  to  X»v.  7,  1861,  the  length  of  a  lode  claim  was 
fixed  by  district  rules. 

2.  Fiom  Nov.  7,  18(11,  to  March  11,  1864,  the  length  of 
a  claim  was  100  feet,  but  an  indefinite  number  of  claims 
could  be  based  on  a  single  discovery. 

3.  From  March  11,  1864,  to  February  9,  1866,  100  feet 
was  the  leugth  of  a  claim,  and  sixteen  claims  of  that  length 
could  be  based  on  a  single  discovery. 

4.  From  Feb.  9,  1866,  to  July  26,  1366,  1.400  feet  was 
the  leugth  of  a  claim  and  the  limit  of  a  location. 

5.  From  July  26,  1866,  to  Feb.  11,  1870,  200  feet  was 
the  length  of  a  claim,  and  1,400  feet  could  be  taken  under 
one  location. 

6.  From  Feb.  11,  1870,  to  May  10,  1872,  200  feet  was 
the  length  of  a  claim,  and  3,000  feet  could  be  taken  under 
one  location. 

7.  Since  May  10,  1872,  1,500  feet  is  the  length  of  a 
claim,  and  it  constitutes  a  single  location.  Under  present 
law  a  claim  and  a  location  are  practically  synonymous 
terms. 


20  WIDTH    OF  OLD  LODE  CLAIMS. 

WIDTH   OF   LODE    CLAIMS    LOCATED    BEFORE 
MAY  10,  1872. 


oO-Foot  Act  of  ISGfi.— 5  4.— On  all  mineral  lodes  or  viens  of 
gold-bearing  ores,  or  of  silver  or  other  valuable  minerals  in  this 
Territory,  the  owner  or  owners  of  all  such  deposits  shall,  by  vir- 
tue of  priority  of  discovery,  be  deemed  and  held  to  be  the  owner 
or  owners  of  all  spurs,  otl'-shoots,  dips,  angles,  feeders,  cross  or 
parallel  veins  of  any  character  or  name  whatsoever,  lying  and 
being  within  the  limits  of  twenty-five  feet  in  either  directio.n  from, 
the  center  of  said  first  discovered  lode  or  vein. — Feb.  9,  1866. 

Indefinite  Under  A.  C.  1866.— g  4.— No  location  hereafter  made 
shall  exceed  two  hundred  feet  *  *  *  *  *  together  witli  a 
reasonable  quantity  of  surface  for  the  convenient  working  of  the 
same  as  fixed  by  local  rules.— ^.  0'.,  July  26,  1866.  Repealed 
May  10,  1872. 

The  district  rules  usually  allowed  a  surface  width  of 
fifty  feet ;  sometimes  more,  often  less.  The  Act  of  Febru- 
ary 9,  1866,  made  twenty-five  feet  ou  each  side  the  center 
of  the  vein  the  width  of  claim  by  implication  only,  and  yet 
was  generally  construed  as  restricting  width  of  claims 
throughout  Colorado;  (Copp.,  201)  and  this  was  the  only 
mention  of  the  subject  in  the  Territorial  Statutes,  prior  to 
1874. 

The  A.  C,  1866,  allowed  a  "reasonable  quantity"  of 
surface,  but  the  Territorial  Statute  of  the  same  year  was 
taken  as  fixing  the  amount  as  above  stated,  at  50  feet. 

Prior  to  the  Actof  Congress  of  1872,  the  width  of  claims 
had  been  considered  merely  as  a  question  of  sufficient  sur- 
face for  couvenieut  working. 


WIDTH    OF  LODE   CLAIMS  BETWEEN    MAY  10, 
1H72,  AND  JUNE   15,  1S74. 


Xotwitiistanding  the  fact  that  the  A.  C.  May  10,  1872, 
allowed  to  lode  claims  in  general  an  increased  width  not 
exceeding  600  feet,  the  Territorial   Statute  printed  under 


DISCOVERY  AND  LOCATION-OLD  CLAIMS.      21 

the  last  lieadinjc,  remaiiud  in  force  until  the  ir)th  of  June, 
1874,  and  fifty  feet  remained  the  legal  width  until  that 
date. 


DISCOVERY  AM)  LOCATION  OF  LODES  BEFOKE 
THE  ACTS  SOW  IN  FORCE. 


Shaft  and  Stake  Kc<iuired  by  Act  of  ISfiC— ^  2;— AUlodes  or 
veins  of  gold,  silver,  or  other  valuable  minerals,  which  may 
hereafter  be  discovered,  shall  be  marked  at  the  point  of  discov- 
ery by  a  substantial  stake,  nost  or  stone  monument,  having  in- 
scribed thereon  the  name  of  the  discoverer  or  discoverers,  and 
the  name  of  the  lode  or  vein,  with  date  of  discovery  ;  and  the 
discoverer  or  discoverers  shall,  before  recording,  excavate  there- 
i)u  11  shaft  at  least  ten  feet  deep,  or  deeper,  if  necessary,  to  find  a 
well  defined  crevice,  or  forfeit  all  right  and  title  he  or  they  may 
have  ac(juired  by  virtue  of  such  discovery.— J^'ebruar^/  9,  li^'iC. 

Mode  or  Iiucatioii  Not  St  rid. —Prior  to  1866  there 
was  neither  United  States  nor  Territorial  Law  regulating 
the  location  of  lode  claims  or  the  recording  of  the  same. 
These  matters  were  determined  exclusively  by  the  District 
Rulce,  or,  if  not  mentioned  in  the  written  regulations  of 
the  district,  would  necessarily  be  governed  by  such  require- 
ments as,  from  the  general  customs  of  miners,  would  be 
considered  reasonable.  Before  the  passage  of  the  Territorial 
Act  above  printed  it  was  difficult  in  terms  to  state  of  what  a 
location  consisted.  A  '"discovery  hole"  and  staking  of 
claims  had  been  incidentally  mentioned,  but  there  was 
nothing  prescribed  by  statute.  Sec.  2,  of  the  Act  of  18(jG, 
was  the  first  requirement  of  a  discovery  shaft  of  any  certain 
depth,  but  it  by  no  means  follows  that  no  identification  or 
sign  of  occujiation  was  previously  necessary.  Sometimes 
the  district  rules  covered  this  point ;  in  all  cases  the  actual 
disclosure  of  the  vein,  and  not  merely  the  float  or  indica- 
tion of  the   vein,  was  required,   at   least   with  regard   to 


22  PRESENT  LENGTH  OF  LODE  CLAIM. 

the  discovery  claim  ;  and  almost  universally  a  stake  was 
marked  with  the  name  of  the  lode  and  of  the  discoverer, 
and  the  date  of  discovery,  and  often  each  claim  was  meas- 
ured and  staked  off. 

That  some  Act  of  Location  was  required,  has  never 
been  disputed.  But,  in  the  absence  of  District  Eules,  what 
would  amount  to  a  sufficient  location  can  only  be  defined 
as  such  Acts  of  Appropriation  as  would  amount  to  a  declar- 
ation that  the  locator  had  appropriated  the  ground,  and  be 
sufficient  notice  to  other  prospectors  that  he  had  so  appro- 
priated it. — Hess  V.  Winder,  12  M.  R.  217;  English  v.  Johnson, 
Id.  203;  Attwood  v.  Fricot,  2  M.  R.  305;  Gleeson  v.  Martin 
White  Co.,  9  M.  R.  429;  Gonu  v.  Russell,  12  31.  R.  630 ;  U.  S.  v. 
Castillero,  2  Black,  191. 

In  the  recent  case  of  Cons.  Rep.  Co.  v.  Lebanon  Co.  9 
Colo.  343,  it  has  been  ruled  that  the  posting  of  the  notice 
and  the  recording  of  certificate  not  followed  by  develop- 
opmeut  or  representation  would  not  hold  the  claim  against 
a  subsequent  location.     See  also  Becker  v.  Pugh,  Id.  589. 


LENGTH  OF  LODE  CLAIMS  SINCE  MAY  10,  1872. 


Thft  Present  floiigressioiial  Act.— R.  S.,  ^  2:520. — Mining  claims 
upon  veins  or  lodes  of  quartz  or  other  rock  in  place  bearing  gold, 
silver,  cinnabar,  lead,  tin,  copper,  or  other  valuable  deposits, 
heretofore  located,  shall  be  g-overncd  as  to  length  along  the  vein 
■or  lode  by  the  customs,  regulations,  and  laws  in  force  at  the  date 
of  their  location.  A  mining  claim  located  after  tl^e  tenth  day  of 
May,  eighteen  hundred  and  seventy-two,  whether  located  by  one 
or  more  persons,  may  equal,  but  shall  not  exceed,  one  thousand 
five  hundred  feet  in  length  along  the  vein  or  lode  ;  but  no  loca- 
tion of  a  milling  claim  shall  be  made  until  the  discovery  of  the 
vein  or  lode  witliinthe  limits  of  the  claim  located. —J  2,  A.  O.  May 
10,  1872. 


PRESENT  WIDTH  OF  LODE  CLAIM.     23 

The  Prpsont  State  Law.— G.  S.  \  2397.— The  length  of  any  lode- 
claim  hereafter  located  may  equal  but  not  exceed  fifteen  hundred 
feet  along  the  \ein.— Feb'}/  13,  1874. 

Since  May  10,  1872,  fifteen  hundred  feet  has  been  the 
well  known  limit  of  a  lode.  Thisniimber  of  feet  constitutes 
one  undivided  claim,  or  one  lode  as  the  word  is  commonly 
used — that  is,  so  much  of  a  vein  as  is  covered  by  one  location 
based  upon  a  single  discovcrj' — and  in  practice  so  much  of 
one  vein  as  is  known  by  a  single  name  and  covered  by  a 
single  record.  An  "Extension"  is  a  separate  lode.  The 
length  of  1,500  feet  was  expressly  adopted  by  the  Territorial 
Act  of  1874,  and  oven  before  the  passage  of  that  Act,  there 
was  no  statute  which  could  be  construed  against  it. 

Length — How  Distributed. — This  length,  by  com- 
mon usage,  is  taken  "oO  feet  on  each  side'of  center  of  dis- 
covery, or  all  on  one  side  except  enough  to  include  the  dis- 
covery shaft  itself,  or  it  may  be  distribnteil  in  any  propoi-- 
tions  on  the  two  ends  of  the  discovery  shaft. 

Location  of  Fxcessive  Lengtl). — The  import  of  the 
decisions  on  tliis  point  seems  to  be  thatan  inadvertent  over- 
stepping of  tlie  legal  length  will  not  avoid  the  claim ;  Rich- 
mond Co.v.  Rose,  lit  U.  S.  57() ;  but  tliat  the  claim  as  to  tiie 
excess  is  void  ;  Hanswirth  v.  Batcher,  i  3font.  299;  and  that 
a  gross  excess  (1763  instead  of  1500  feet)  made  without  ex- 
cuse will  defeat  the  whole  location. — Leggatt  v.  Stewart, 
2  Pac.  320. 


WIDTH  OF  LODE  CLAIMS  SINCE  JUNE  15,  1874. 


limits  Allowpd  by  Present  V.  S.  Law.— R.  S.:  ?  2320.  *  *  * 
No  claim  shull  extend  more  than  three  hundred  feet  on  each  side 
of  tlie  niiddU' of  the  vein  at  the  surfiice,  nor  .shall  any  claim  be 
limitecl  hy  iniy  mining  regiilntion  ti>  less  than  iwonty-tive  feet  on 


24      PRESENT  WIDTH  OF  LODE  CLAIM. 

each  side  of  the  middle  of  the  vein  at  the  surface,  except  where 
adverse  rights  existing  on  the  tenth  day  of  May,  eighteen  hun- 
dred and  seventy-two,  render  such  limitation  necessary.  The 
end  lines  of  each  claim  shall  be  parallel  to  each  other.— §  2,  A: 
C.  May  10, 1872. 

Present  Widtli  Fixed  by  Colorado  Statute.— G.  S.  ?  2398.— The 
width  of  lode  claims  hereafter  located  in  Gilpin,  Clear  Creek, 
Boulder  and  Summit  Counties,  shall  be  seventy-five  feet  on  each 
side  of  the  center  of  the  vein  or  crevice ;  and  in  all  other  counties 
the  width  of  the  same  shall  be  one  hundred  and  fifty  feet  on  each 
side  of  the  centre  of  the  veia<)r  crevice  :  Provided,  That  hereafter 
any  county  may,  at  any  general  election,  determine  upon  a  greater 
width  not  exceeding  three  hundred  feet  on  each  side  of  the  cen- 
ter of  the  vein  or  lode,  by  a  majority  of  the  legal  votes  cast  at 
said  election,  and  any  county  by  such  vote  at  such  election  may 
•determine  upon  a  less  width  than  above  specified.— i''e6'2/  13, 
1871. 

30O  Feet,  Except  in  Certain  Counties.— The  A. 

C.  of  1872,  having  allowed  to  the  locator  all  the  veins  within 
the  side  lines  of  his  claim,  gave  at  once  to  the  question  of 
width  an  importance  before  unknown.  The  Legislature 
having  in  its  power  to  choose  between  the  extreme  width 
of  600  feet  and  the  minimum  width  of  50  feet,  a  great  differ- 
ence of  opinion  resulted,  citizens  of  the  older  mining  coun- 
ties generally  contending  for  a  narrow  width,  while  in  the 
new  districts  a  much  greater  width  was  desired ;  after  great 
debate  it  was  fixed  at  150  feet  for  Gilpin,  Clear  Creek,  Boulder 
and  Summit  counties,  and  at  300  feet  in  all  other  counties, 
which  is  the  only  instance  of  county  legislation  on  the  sub- 
ject of  mines  in  Colorado;  except  an  unimportant  local  Act 
concerning  district  records  in  part  of  La  Plata  county. 

No  instance  is  known  to  the  author  of  any  attempt,  in 
any  county,  to  increase  the  width  by  an  election  held  under 
the  proviso  of  section  2398 ;  and  the  constitutionality  of 
any  such  proceeding,  if  attempted,  would  admit  of  very  great 
doubt. 

Center  of  Vein,  Center  of  Claim. — It  will  be 
observed  that  the  center  of  the  lode  is  made  the  center  of 
•this  width,  both   in  the  Congressional   and  State  Acts;   if. 


PRESENT  WIDTH   OP'  LODE  CLAIM.  25 

therefore,  a  party  attempt  to  locate  more  than  half  the 
extreme  width  on  either  side  of  his  vein,  the  location  of 
such  excess  is  witliout  the  authority  of  law,  even  although 
the  entire  width  be  within  the  statutory  limit. 

IiOcan«>n  of  Kxcessive  Width.— The  Surveyor- 
General  will  not  issue  an  order  for  survey  for  patent  upon 
a  location  certificate  which  claims  more  than  75  feet  in  the 
counties  named,  or  more  than  150  feet  in  the  other  counties,^ 
from  the  centre  of  the  vein,  and  it  is  doubtful  whether  any 
court  would  receive  such  a  certificate  in  evidence.  Such 
mistakes  are  the  work  of  surveyors  wlio  undertake  to  ]iut 
their  lield  notes  into  the  form  of  a  location  certificate,  in 
total  ignorance  of  what  constitutes  a  valid  location  certifi- 
cate. This  document  should  be  drawn  by  a  competent 
attorney. 

Vein  Approachins  Side  Line,  Leaving  E\cp.«» 
of  Widtli  on  One  Side. — It  is  true  that  it  may  not  be 
known  when  the  stakes  are  set  what  the  course  of  the  lode 
may  be,  and  honest  errors  in  this  respect  are  readily  com- 
mitted ;  but  the  vein  being  the  basis  of  location,  and  it 
having  been  decided  that  when  a  vein  leaves  the  side  lines 
of  location  the  claim  both  as  to  veins  and  surface  beyond 
that  point  is  void,  it  necessarily  follows,  where  either  side 
line  is  found  at  any  point  to  be  more  than  the  legal  distance 
from  the  centre  of  the  vein,  that  the  location  in  such  case 
has  not  been  based  upon  a  vein  lying  within  the  statutory 
limits,  and  comes  within  the  same  reasoning  which  renders 
all  that  part  of  the  location  void  in  which  no  vein  is  found. 
— Patterson  v.  Hitchcock,  5  M.  R.,  5i2. 


26  DISCOVERY   AND  LOCATION. 

DISCOVERY  AND  LOOATIOX  UNDER  LAWS  NOW 

IN  FORCE. 


DiscoTcry  Required.— R.  S.  §  2320.  *  *  *  Nq  location  of  a 
miiiinp;  claim  .shall  be  made  until  the  discovery  of  the  vein  or 
lode  within  the  limits  of  the  claim  located.  *  *  Sec.  2,  A.  C. 
May  10,  1872. 

Staking  and  Record. — R.  S.  g  2324.— The  miners  of  each  min- 
ing district  may  make  regulations  not  in  conflict  with  the  laws  of 
the  United  States,  or  with  the  laws  of  the  State  or  Territory  in 
Avhich  the  District  is  situated,  governing  the  location,  manner  of 
recording,  amount  of  work  necessary  to  hold  possession  of  a  min- 
ing claim,  subject  to  the  following  requirements :  The  location 
must  be  distinctly  marked  on  the  ground  so  that  its  boundaries 
can  be  readily  traced.    *    *    *    —iSec.  5  A.  C.  May  10, 1872. 

Discovery  Shaft,  Notice  and  Stakes.- G.  S.,  ?,  2401.— Before 
filing  such  location  certificate  the  discoverer  shall  locate  his 
claim  by : 

i^w-s<— Sinking  a  discovery  shaft  upon  the  lode  to  the  depth 
of  at  least  ten  feei  from  the  lowest  part  of  the  rim  of  such  shaft 
at  the  surface,  or  deeper,  if  necessary  to  show  a  well  defined 
crevice. 

Second— By  posting  at  the  point  of  discovery  on  the  surface 
a,  plain  sign  or  notice,  containing  the  name  of  the  lode,  the  name 
of  the  locator,  and  the  date  of  discovery. 

Third— Bx  marking  the  surface  boundaries  of  the  claim. — 
Feb.l.'>.  1S74.  " 

Cornfir  Posts,  Center  Posts.— G.  S.  ?  2402.— Such  surface  boun- 
daries shall  be  marked  by  six  .sub.stantial  posts  hewed  or  marked 
on  the  side  or  sides  which  are  in  toward  the  claim,  and  .sunk  in 
the  ground,  to-wit :  one  at  each  corner  and  one  at  the  centre  of 
each  side  line.  Where  it  is  practically  impossible  on  account  of 
bed-rock  to  sink  such  posts,  they  may  be  placed  in  a  pile  of 
stones,  and  where  in  marking  the  surface  boundaries  of  a  claim 
any  one  or  more  of  such  posts  shall  fall  by  right  upon  precip- 
itous ground,  where  the  proper  placing  of  it  is  impracticable  or 
dangerous  to  life  or  limb,  it  shall  be  legal  and  valid  to  place  any 

NoTE-The  original  section  6,  of  the  Act  of  1874,  reads  as  follows  : 
"Such  surface  boundaries  shall  be  marked  by  six  substantial 
posts  hewed  or  marked  on  the  side  or  sides  which  are  in  toward 
the  claim,  and  sunk  in  the  ground  to-wit:  One  at  each  corner 
and  one  at  the  center  of  eacli  side  line.  Where  it  is  practically 
impossible  on  account  of  l)ed-rock  or  precipitous  ground  to  sink 
such  posts,  they  may  be  placed  in  a  pile  of  stones." 


DISCOVERY   AND   LOCATION.  27 

such  post  at  the  iieaiost  practicable  point,  suitably  marked  to 
designate  the  pniper  i>\&ce.— Compiled  from  Acts  of  Feb'y  13, 
1871,  and  Feb'y  J,  1876. 

Open  Cuts  anil  Tunnel  nisroTfries.— G.  S.  j  2403.— Any  open 
cut,  eross-eul  or  iiuincl  which  slmll  cut  a  lode  at  the  depth  often 
feet  below  the  surface,  shall  liold  such  lode,  the  same  as  if  a  dis- 
covery shaft  were  sunk  thereon,  or  an  adit  of  at  least  ten  feet  in 
along"  the  lode  from  the  point  where  the  lode  may  lie  in  any 
manner  discovered,  shall  be  equivalent  to  a  discovery  shaft.— 
heb.  13,  1874. 

Time  to  Sink  Discovery.  -  (i.  .S.  J,  2404.— The  discoverer  shall 
have  sixty  days  from  the  time  of  uncovering  or  disclosing  a  lode 
to  sink  a  "discovery  shaft  thereon.— /6id. 

Appropriation. -The  doctrine  of  appropriation  would 
have  no  application  to  mining  and  water  claims  on  the  Pa- 
cific Slope  if  the  lands,  before  the  discovery  of  minerals, 
had  passed  into  the  hands  of  private  owners ;  nor  to  the 
government  itsell',  if  the  government  had  chosen  eitlier  t» 
treat  the  miners  as  trespassers  or  to  arbitrarily  dispose  of 
the  lauds  at  public  sale.  Instead  «f  adopting  any  such 
policy,  the  United  States  for  many  years  tacitly,  and  since 
1866  by  positive  enactment,  opened  the  lands  to  the  explor- 
er aud  occupant;  in  other  words,  the  mineral  lands  were 
oftcred  to  the  first  appropriator.  Tlie  acts  of  appropriation 
as  to  mineral  land  are  equivalent  to  such  acts  as  would 
amount  to  occupation  in  other  cases;  there  must  be  an  in- 
tent to  possess  the  claim,  such  acts  of  appropriation  as  are 
sutficient  to  carry  out  this  incention,  and  finally  such  acts 
must  have  such  publicity  by  record  as  to  operate  as  notice 
to  all  that  the  lands  have  been  actually  appropriated. 

Tlie  appropriation  of  a  mine,  the  appropriation  of  water 
for  mining  or  irrigating  purposes,  and  the  i  ccupatiou  of 
homestead  land  are  therefore  in  substance  the  same,  and 
differ  only  so  far  as  the  various  subject  matters  differ,  the 
criterion  in  eacii  case  being  the  intent  of  the  occupant  to 
segregate  a  certain   portion  of  the  public   domain  to  his 


28  DISCOVERY  AND  LOCATION. 

several  use,  followed  by  acts  manifesting  such  intention 
with  such  publicity  as  is  due  to  the  rights  of  third  parties. 
— Sparr&iv  v.  Strong,  2  M.  R.  320.  Gore  v.  McBrayer,  1  if.  R. 
645. 

The  formal  Acts  of  Appropriation  in  the  case  of  lode 
claims  are : 

(1)  Discovery. 

(2)  Location. 

(3)  Eecord. 

Discovery. — The  discovery  of  a  lode  of  itself  gives 
title  to  the  vein  for  such  length  of  time  as  is  allowed  by 
law  for  the  completion  of  the  location  and  record  {Hurley  v. 
Ennis,  12  M.  R.  360;  Erhardt  v.  Boaro,  4  M.  R.  432 ;  113  U.  S. 
527);  and  when  the  location  and  record  are  made,  the  incep- 
tion of  title  still  relates  back  to  the  date  of  discovery. 

From  this  fact  a  later  record  may  show  an  older  and 
better  title  th»n  a  record  made  several  months  earlier;  Pat- 
terson V.  Hitehcock,  5  M.  R.  542.  For  this  reason  it  is  advis- 
able, although  not  necessary,  for  the  location  certificate  to 
recite  the  date  of  discovery  as  veil  as  the  date  of  location. 

The  Vein  Must  be  Reached. — The  discovery  is  not 
complete  until  the  vein  itself  is  disclosed.  The  finding  of 
float  or  loose  quartz  is  not  sufficient.  There  is  a  custom 
almost  universally  respected  among  miners,  when  any  per- 
son has  discovered  indications  of  a  lode  and  is  diligently 
following  up  these  indications,  to  allow  thirty  days  in 
which  to  uncover  the  deposit ;  but,  if  another  person,  by  a 
shorter  cut,  should  first  actually  reach  the  vein,  it  would 
seem  that  the  first  prospector  could  assert  no  priority;  and 
S)ich  have  been  the  detn.sioiis.  Upton  v.  Larkin,  6  Pac.  66  ; 
North  Noonday  Co.  v.  Orient  Co.,  9  M.  R.  .529 ;  Overman  Co.  v. 
■Corcoran,  1  M.  R.  691.     But  in  the  case  of  Erhardt  v.  Boaro, 


DISCOVERY   AND   LOCATION.  29 

11:5  U.  S.  ii'M,  there  is  a  dictum  to  the  etl'eet  that  knowledge 
of  mineral  in  the  immediate  vicinity  would  protect  a  pros- 
pector at  work  who  had  set  notice  and  stakes. 

Discovery  afccr  Ijocati«>n. — If  a  location  be  made 
before  discovery  but  it  is  followed  by  a  discovery  before 
any  adverse  rights  intervene,  there  are  several  decisions  to 
the  ell'ect  that  such  subsequent  discovery  cures  the  original 
defect  and  that  the  claim  is  valid. — McGinnis  r.  Egbert,  8 
Colo.  41 ;  Golden  Terra  Co.  v.  Mahler,  4  M.  R.  390 ;  Jupiter  Co. 
V.  Bodie  Co.,  4  M.  R.  411 ;  ZoUars  v.  Evans,  4  M.  R.  407. 

LiOtle  Found  Oiitsiile  of  Discovery  Shaft. — And 

it  has  been  decided  that  althoujih  no  lode  was  found  in  the 
discovery  shaft,  its  disclosure  elsewhere  within  the  claim 
before  any  adverse  rights  had  accrued  would  validate  the 
claim.  Harrington  v.  Chambers,  1  Pac.  362.  But  to  the  con- 
trary is  the  case  of  Van  Zandt  v.  Argentine  Co.,  4  M.  R.  441 ; 
and  if  it  be  true  that  the  sinking  of  the  discovery  within 
patented  linos  vacates  the  entire  claim;  and  that  the  pat- 
enting of  the  discovery  shaft  by  a  hostile  claim  invalidates 
the  entire  claim;  and  if  the  discovery  shaft  be  the  point 
from  which  both  length  and  width  of  the  claim  are  determ- 
ined, the  point  at  which  the  notice  is  to  be  po.sted,  and 
where  it  is  required  in  terms  to  show  a  well  defined  crevice, 
it  seems  inconsistent  to  hold  that  discovery  elsewhere  would 
be  of  any  avail  where  there  was  none  in  the  discovery 
shaft. 

By  Kelocatioii  Upon  the  Shaft  Showing  the 
Mineral  afterwards  discovered,  this  danger  can  be  avoided 
where  no  hostile  discovery  has  intervened. 

The  Point  at  Which  a  Lode  is  Discovered   is 

not  material.  It  may  be  discovered  at  the  surface  where  it 
outcrops  above  all  surrounding  country  rock;  or  under  the 
slide  near  the  surface  at  its  true  apex,  by  shaft,  open  cut  or 


30  DI6UOVERY  AND  LOCATION. 

boom  ditch ;  or  at  greater  depth  by  a  tunuel  cutting  the 
vein  horizontally  across  its  dip,  or  by  a  shaft  striking  it 
perpendicularly  upon  the  incline. 

Discovery  and  Discovery-Shaft  Distinguished. 

— The  fact  of  discovery  is  a  fact  of  itself,  totally  to  be  discon- 
nected from  the  idea  of  discovery  shaft;  the  discovery  shaft 
is  a  part  of  the  process  of  location,  subsequent  to  discovery. 
If  a  lode,  for  instance,  be  discovered  in  a  cross-cut  run  to 
operate  some  other  known  vein,  and  no  steps  are  taken  to 
stake  and  record  such  lode,  it  becomes  no  more  the  property 
of  the  owner  of  the  cross-cut  than  if  he  had  never  happened 
to  strike  it,  and  although  he  could  have  followed  up  the 
discovery  by- perfecting  title,  his  neglect  so  to  do  is  equiva- 
lent to  abandonment  of  the  inchoate  right  given  by  dis- 
covery. The  discovery  shaft  need  not  be  sunk  at  the  point 
where  the  lode  was  first  actually  discovered. 

All  Methods  of  Discovery,  whether  by  shaft,  cut, 
tunnel,  boom-ditch  or  otherwise,  are  recognized  by  the  Stat- 
ute, the  only  distinction  being,  that  when  discovered  at  the 
surface  or  in  the  slide  there  mmst  be  a  shaft  at  least  ten  feet 
deep,  or  deeper,  if  necessary  to  show  a  well-defined  crevice; 
while  if  disclosed  in  an  open  cut,  cross-cut  or  tunnel,  the 
vein  must  be  cut  and  a  well-defined  crevice  exposed,  at  least 
ten  feet  below  the  surface. 

Discovery  by  Prospecting  Drill. — The  discovery 
of  a  lode  or  deposit  by  either  horizontal  or  perpendicular 
drilling  would  doubtless  fulfill  all  the  conditions  of  a  legal 
discovery,  and  would  operate  to  nive  the  party  the  sixty 
days  allowed  to  complete  a  discovery  shaft;  but  the  idea  that 
a  drill-hole  would  be  considered  as  the  equivalent  of  a  dis- 
covery shaft  cannot  be  entertained.  It  would  be  a  physical 
impossibility  for  such  drill-hole  to  show  a  well-defined  crev- 
ice, and  a  drill-hoie  is  neither  a  shaft,  cut  or  other  opening 


DISCOVERY   AND  LOCATION.  31 

such  as  are  enumerated  amouc  those  things  which  may  con- 
stitute a  discovery  shaft  or  cut.  The  discovery  of  a  lode  is 
a  matter  of  interest  to  the  prospector  only;  but  if  he  intend 
to  appropriate  the  same  it  must  be  by  such  physical  work- 
ings as  shall  amount  to  a  notice  to  third  parties.  A  drill- 
hole is  not  a  notorious  physical  landmark,  and  could  not  be 
construed  as  such  notice. 

Discovery  Hold.s  60  Days. — A  discovery  holds  the 
claim  for  the  sixty  day.s  allotted  to  sink  the  discovery  shaft. 
As  soon  as  a  vein  is  found  by  the  prospector  it  is  the  cus- 
tom to  place  at  the  point  of  discovery  a  notice  about  as  fol- 
lows : 

CONTENTION  LODE. 

The  undersigned  claims  .sixty  days  to  sink  rti.scovery  shaft 
and  three  months  to  record  oa  this  vein.    July  1,1887. 

Jeremiah  Lee,  Discoverer. 

But  if  it  is  bona  fide  the  intention  of  the  discoverer  to 
complete  bis  location,  the  absence  of  such  notice  would  not 
be  fatal.  This  is  not  the  notice  required  when  the  location 
is  made,  (page  32).  It  is  a  mere  warning  to  other  prospect- 
ors that  some  one  has  acquired  a  prior  right  on  that  crev- 
ice. Erhardt  v.  Boaro,  113  U.  S.  537.  It  seems  useless  to 
add  that  if  the  discovery  shaft  is  not  completed  within  the 
legal  time  it  is  mere  folly  to  pull  down  the  old  notice  and 
put  up  another  of  a  later  date.  The  sixty  days  begin  to 
run  from  the  date  of  discovery,  and  nothing  can  enlarge  the 
time. 

liocation. — The  location  of  a  lode  consists  in  defining 
its  position  and  boundaries,  and  in  doing  such  acts  as  indi- 
cate the  intention  to  occupy  and  possess  it  under  the  li- 
cense of  the  United  States. 

The  formal  parts  of  a  location  include : 

1.  The  location  notice  at  discovery. 

2.  The  discovery  shaft. 
.'5.    The  boundary  stakes. 


32  DISCOVERY   AND  LOCATION. 

Liocatioii  Stake. — Although  a  very  old  custom,  the 
requirement  of  the  Act  of  1866  as  to  a  location  stake  was  not 
generally  considered  imperative,  but  in  a  recent  case  the 
Supreme  Court  enumerate  it  as  one  of  the  constituent  parts 
of  a  complete  location. — Strepey  v.  Starh,  7  Colo.,  618. 

The  words  of  the  Act  require  "a  plain  sign  or  notice," 
but  there  never  has  been  any  uniformity  among  prospectors 
in  the  details  of  the  notice,  or  in  the  mode  of  posting  it.  It 
may  be  substantially  complied  with  by  writing  on  a  blazed 
tree  or  on  a  board  nailed  at  discovery,  or  by  legible  carving, 
or  by  any  other  rude  but  honest  form  of  notice,  so  that  it 
be  intelligible  and  open  to  observation;  but  the  loose  prac- 
tice of  writing  on  a  chip  or  stick  thrown  into  the  discovery 
hole,  is  an  attempt  to  evade  or  abuse  the  fair  requirement 
of  the  law.    The  following 

FORM   OF   NOTICE   ON   STAKE: 

The  Famine  Lode,  discovered  by  Jesse  White,  November  1, 
1886.    Claim  750  feet  easterly  and  75U  feet  westerly  from  discovery . 

JESSE  WHITE. 

fully  complies  with  the  Act,  and  would  still  be  sufficient 
without  signing  at  the  foot  and  without  stating  the  number 
or  direction  of  feet  claimed. 

Discovery  Shaft  Must  be  on  Public  Domain.— 

The  discovery  must  be  sunk  upon  unoccupied  public  land ; 
that  is  to  say  it  must  be  outside  of  the  lines  of  any  patent 
or  even  of  any  valid  location. —  Upton  v.  Larkin,  6  Pac.  66; 
Little  Pgh.  Co.  v.  Amie  Co.,  17  Fed.  57;  Armstrong  v.  Lower, 
6  Colo.  393. 

Patent  Over  Discovery  Shaft. — And  where  a 
party  allows  a  claim  held  by  other  parties  to  go  to  patent 
over  his  discovery  shaft,  "the  loss  of  the  discovery  is  a  loss 
of  the  location."— Givillim  v.  Donnellan,  115,  15  U.  S.  45. 


DISCOVERY   AND   LOCATION.  33 

Claim  Must  Include  Discovery  Shaff. — It  is  self 
evident  tliat  the  claim  must  iiichulc  the  discovery  shaft, 
and  proof  that  by  change  of  boundaries  tliey  were  made  so 
as  to  exclude  the  discovery  shaft  is  admissible  to  defeat 
sucli  location. — McGinnis  v.  Egbert,  8  Colo.  54. 

Discovery  Shaft  Must  be  Ten  Feet  Doep.--Inthe 

case  of  the  Maine  and  Phoenix  lodes,  located  under  the  Act  of 
18G6,  Hon.  Judge  Belford  decided  that  when  a  discovery 
shaft  was  sunk  upon  sloping  ground  the  average  might  be 
taken  to  determine  whether  the  shaft  was  of  legal  depth  ; 
but  since  June  1.5,  1874,  it  must  be  at  least  ten  feet  f.-om  the 
lowest  part  of  the  surrounding  surface. 

In  all  the  litigation  known  to  the  writer,  it  has  always 
been  conceded  that  the  depth  of  ten  feet  required  must  be 
found  by  taking  a  perpendicular  measurement,  not  regard- 
ing the  slope  or  dip  of  the  shaft. 

After  a  shaft  has  been  sunk  ten  feet  the  ground  at  the 
collar  may  cave,  or  the  shaft  may  become  so  filled  with  de- 
bris, or  the  making  of  a  platform  or  raised  collar  may  make 
it  difficult  to  ascertain  the  exact  line  of  the  original  rim  of 
the  shaft,  or  to  ascertain  its  original  bottom.  In  view  of 
these  facts  and  of  the  essential  importance  of  the  shaft  being 
full  ten  feet  deep,  it  is  always  advisable  to  sink  it  two  or 
three  feet  deeper  and  remove  all  ground  for  cavil  or  con- 
tention. 

It  has,  however,  in  several  cases  been  decided  at  nini 
prius,  both  in  the  United  States  Court  at  Denver  and  in  the 
First  Judicial  District,  that  where  the  discovery  shaft  had 
not  reached  the  legal  depth  at  time  of  record,  but  had  been 
completed  to  that  depth  afterwards  and  before  any  adverse 
rights  had  intervened,  such  discovery  shaft  was  valid. 
2 


34  DISCOVERY  AND  LOCATION. 

Discovery  Must  Show  Well  Defined   Crevice. — 

Besides  rcachiUf^  a   csrtaiu  depth,  a  well-defined    crevice 
must  be  found  in  the  shaft. 

If  a  crevice  do  not  show  in  ten  feet,  the  shaft  must  go 
deeper;  if  it  appear  sooner,  the  ten  feet  must  still  be  com- 
pleted. The  crevice  shows  tlie  lode  discovered,  the  deptli 
shows  the  lode  appropriated;  even  before  the  passage  of  any 
ten-foot  shaft  law,  such  a  crevice  was  required  to  be  shown 
as  decided  by  Hon.  Judge  Belford  upon  the  location  of  the 
Bowman  Lode;  but  in  the  Eagle- Badger  injunction  case,  decided 
at  Denver.  Hon.  Judge  Wells,  while  holding  the  necessity 
of  a  discovery  shaft  of  the  depth  fixed  by  Statute,  also  ruled 
that  the  term  "crevice"  must  be  taken  in  connection  with 
the  nature  of  the  deposit,  and  that  if,  as  was  suggested,  the 
Mt.  Lincoln  discoveries  weie  not  true  veins  or  fissures,  the 
shaft  might  pass  entirely  through  the  deposit  and  still  re- 
main a  valid  monument  of  occupation. 

Discovery  Need  Not  Show  Wall. — It  has  been 
decided  in  Montana  (Foote  v.  National  Co.  9  M.  R.  605)  that 
at  least  one  wall  of  the  lode  muft  be  disclosed  before  the 
vein  can  be  considered  as  discovered.  But  this  decision 
makes  the  discovery  dependent  upon  a  single  incident, 
which  is  not  by  any  means  the  only  proof  of  the  existence 
of  a  vein.  Such  decision  is  not  authority  in  this  State ;  nor 
should  it  have  any  weight,  because  wholly  unsupported  by 
reason.  There  are  certain  classes  of  deposits  which  are 
doubtless  lodes  or  veins  within  the  intent  of  the  Act  of  Con- 
gress, which  show  no  well-defined  walls  after  thorough 
development,  much  less  within  that  amount  of  working 
which  is  required  as  the  basis  of  a  record. 

Shaft  Through  Slide  or  Country.— Nor  does  it 
make  any  diff'ereuce  that  the  shaft  is  started  in  slide  or 
upon  a  stratum  of  country   rock,  if  it   pierce  through   the 


DISCOVEKY    AXD  LOCATION.  35 

slide  or  couutry  and  find  a  crevice  at  a  dei>tli  of  ten  leet  or 
more.    Such  a  shaft  fulfills  all  the  statutory  couditions. 

Separate  Discovery  Jor  Kach  (Maim. —  I  he  at- 
tempt to  locate  two  full  claims  upon  one  discovery  shaft  is  a 
palpable  fraud.  It  issometiiues  alleged  that  two  lodescross 
in  the  discovery  shaft,  but  no  ten-foot  shaft  can  prove  such 
fact  if  such  a  coincidence  ever  occurs. — McKinstry  v.  Clark, 
4  Mont.  ;570. 

* 

Open  Cut,  Adit  and  Tunnel  Discoveries. — The 

Statute  provides  that  discovery  by  means  of  an  open  cut, 
adit,  cross-cut  or  tunnel,  shall  be  equivalent  to  a  shaft. 
Where  the  discovery  is  by  cross-cut,  tunnel  or  open  cut  it 
must  show  the  lode  at  a  depth  of  ten  feet  below  the  surface, 
that  is  to  say,  the  breast  of  the  cut  or  tunnel  must  be  of 
that  depth  at  its  bottom  to  be  the  equivalent  of  a  ten  foot 
discovery  shaft ;  but  where  discovery  is  by  an  adit,  the 
Supreme  Court  have  ruled  in  two  cases  that  it  need  not  be 
ten  feet  deep,  nor  any  specific  depth,  at  the  breast,  but  that 
the  adit  must  be  ten  feet  in  length  along  the  vein. — Gray 
V.  Truby,  6  Colo.  278.  Electro  Magnetic  Co.  v.  Van  Auken,  9 
Colo.  204. 

In  the  latter  case  they  also  held  that  an  adit  need  not 
enter  cover  to  be  an  adit.  The  effect  of  the  latter  decision 
is  to  confuse  all  the  distinctions  between  an  adit  and  an 
open  cut,  so  that  if  the  hole  or  stripping  discloses  ten  feet 
in  length  of  the  vein  it  may  be  styled  an  adit,  although  in 
fact  an  open  cut.  It  is  not  safe  to  rely  on  this  construction, 
and  no  prospector  should  consider  his  discovery  complete 
until  he  has  ten  feet  in  depth  at  the  breast  of  his  cut,  or  a 
covered  adit  at  least  ten  feet  in  along  the  vein. 

The  words  cross-cut  and  tunnel  are  identical  terms, 
except  that  the  former  is  usually  applied  to  sliort  workings 
and  the  latter  to  those  of  greater  length.     Where  the  dis- 


36  DISCOVERY   AND  LOCATION. 

covery  is  in  a  cross-cut  or  a  tuuuel  the  locatiou  notice  should 
be  posted  immediately  above  the  point  where  the  vein  is  cut 
below,  making  proper  allowance  for  the  supposed  dip  of  the 
vein,  and  the  staking  should  then  be  made  so  as  to  measure 
the  legal  width  and  length  from  the  location  stake  in  the 
same  manner  as  if  there  were  a  discovery  shaft  at  the  point 
where  such  location  stake  has  been  set. 

It  does  not  seem  that  a  discovery  in  a  tunnel,  even 
where  the  tunnel  has  been  located  and  surveyed  under  the 
Act  of  Congress,  will  ever  be  construed  to  amount  to  a  valid 
location  without  the  posting  of  notice  and  the  marking  of 
boundaries  in  the  same  manner  as  in  the  case  of  surface  dis- 
coveries.— Corning  Tunnel  Co.  v.  Pell,  4  Colo.  507. 

Staking  Boundaries. — That  the  staking  of  the  sur- 
face boundaries  of  the  claim  has  been  required  upon  all 
locations  made  since  May  10,  1872,  has  been  expressly 
decided. — Holland  v.  Mount  Auburn  Co.,  9  M.  B.  497;  Gelcich 
V.  Moriarty,  Id.  498;  Hauswirth  v.  Butcher,  4  3font.  299.  These 
decisions  are  not  made  upon  local  Statutes,  but  as  the  con- 
struction of  R.  S.,  ^  2324,  above  printed ;  nor  can  we  see  how 
any  other  construction  can  be  contended  for.  It  follows^ 
therefore,  that  between  May  10,  1872,  and  the  15th  of  June, 
1874,  surface  staking  along  the  bounds  of  the  claim  was 
required  in  all  cases,  notwithstanding  the  fact  that  between 
those  dates  we  had  no  Territorial  Statute  on  the  subject. 
The  Martin  White  case,  below  quoted,  is  to  the  same  effect 
and  gives  a  full  review  of  the  different  modes  of  location  on 
the  Pacific  Slope. 

It  maybe  true  in  instances,  that  hardship  results  under 
this  provision ;  but  it  is  better  for  a  party  to  lose  a  portion 
of  his  vein  by  its  departure  from  its  staked  lines,  than  that 
he  be  allowed  to  leave  his  vein  and  its  course  undetermined 
until  a  rich  discovery  in  the  vicinity   suggests  the  time 


DISCOVERY  AND  LOCATION.  37 

arrivc<l  to  "prove  up''  and  take  his  noijihbor's  lode.  This  is 
not  a  toroc><l  illustration— it  is  tin.-  vi'ry  evil  which  the  law 
is  intended  for  the  future  to  prevent.— Gieeswt  v.  Martin 
White  Co.,  9  M.  B.  429;  Gonii  v.  Russell,  12  M.  R.  630;  Gilpin 
Co.  V.  Drake,  8  Colo.  086;  Sweet  v.  Webber,  7  Cvlo.  443. 

Three  Moutbs  to  Complete  Staking  is  the  time 
allowed  by  implication  from  the  Statute.  The  discoverer 
has  sixty  days  to  complete  his  discovery  shaft  and  three 
mouths  to  record.  If  his  staking  is  completed  at  any  time 
within  the  three  months,  that  is,  within  the  period  allowed 
between  the  date  of  discovery  and  the  date  when  record, 
must  be  made,  it  is  in  apt  time.  He  is  allowed  less  time  to 
sink  his  discovery  than  to  set  his  stakes,  because  he  should 
know,  as  soon  as  his  vein  is  disclosed,  whei'e  to  sink ;  but 
he  cannot  so  readily  know  the  course  of  the  vein,  and  con- 
sequently needs  time  for  this  part  of  the  location,  inasmuch 
as,  his  stakes  once  set,  he  covers  no  more  of  his  vein  than 
lies  within  them. — Erhardt  v.  Boaro,  113  U.  S.  527. 

Even  if  the  setting  of  his  stakes  is  delayed  beyond 
the  period  of  three  months,  the  location  is  not  invalidated 
■where  no  adverse  rights  have  intervened. — McGinnis  v. 
Egbert,  8  Colo.  41. 

All  Statutes  Liiiuiting  Time  to  perfect  location  and 
record  are  directory  where  there  is  but  a  single  claimant^ 
and  delay  becomes  material  only  when  the  rights  of  third 
parties  have  intervened. 

Diagram  of  Liocation.— The  diagram  of  a  lode  cor- 
rectly located,  under  the  Act  of  1874,  will  show  substantially 
as  follows : 

POST  POST  POST 

0 o o 

■■•  Location  stake. 
Discovery  shaft,  f] 

o 0 o 

POST  POST  POST 


38  DISCOVERY  AND   LOCATION. 

ELEMENTS  OF   LOCATION. 

1st.  Discovery  shaft  at  least  ten  feet  deep  from  the 
lowest  part  of  the  rim  at  the  surface,  and  showing  a  well- 
defined  crevice. 

2d.  Location  stake;  a  plain  sign  or  notice  containing 
the  name  of  the  lode,  the  name  of  the  locator,  and  the  date 
of  discovery. 

3d.  Two  substantial  side  posts  sunk  in  the  ground 
and  hewed  on  the  side  which  is  in  toward  the  claim. 
These  side  posts  must  be  sunk  in  the  centre  of  each  side 
line ;  that  is,  in  a  1,500  foot  claim,  750  feet  from  each  end 
line. 

4th.  Four  substantial  stakes,  one  at  each  corner  of  the 
claim,  sunk  in  the  ground  and  hewed  on  the  two  sides 
which  are  in  toward  the  claim. 

5th.  It  is  the  invariable  custom  where  there  are  angles 
in  the  side  lines,  to  place  a  stake,  hewed  on  the  side  in 
toward  the  claim,  at  each  angle. 

Must  Cover  Apex. — The  stakes  of  the  location  must 
include  the  apex  of  the  vein  and  in  so  far  as  they  fail  so  to 
do,  the  claim  is  void  or  defective  to  that  extent:  That  is  to 
say,  no  title  is  acquired  to  any  portion  of  the  vein  under- 
lying that  part  of  the  apex  not  covered  by  the  survey,  and 
the  right  to  the  dip  on  that  portion  which  is  covered  is  more 
or  less  aflFected.  The  poiats  arising  in  this  class  of  cases  are 
considered  under  "Apex." 

Locating  Without  Aid  of  Surveyor. — In  locating 
any  class  of  claims  a  survey  is  always  advisable. 

If  the  prospector,  however,  cannot  procure  a  professional 
surveyor  (and  it  is  often  impracticable),  a  reasonable  degree 
of  care  will  suffice  to  locate  his  boundaries  with  certainty 
sufficient  to  make  the  subsequent  record  valid. 


DISCOVERY  AND  LOCATION.  39 

The  record  is  merely  a  description  of  the  claim  as 
staked  ou  the  ground ;  if  not  properly  staked  the  record 
does  not  make  a  good  location;  but,  if  the  location  has  been 
properly  made,  the  record  can  readily  be  made  to  describe 
it  fully,  whether  such  location  has  been  made  by  a  surveyor 
or  otherwise. 

The  discovery  shaft  being  taken  as  the  center  of  the 
claim,  and  the  initial  point  of  location,  a  tape  line  measure- 
ment from  its  center  75  (or  I.'jO)  feet  at  right  angles  to  the 
lode,  reaches  to  the  point  where  a  center  stake  must  be  set; 
return  to  discovery  shaft  and  continue  the  same  line  on  the 
other  side  the  same  distance  and  set  the  second  center  or 
side  stake ;  at  right  angles  to  this  line  and  across  the  center 
of  discovery  shaft  run  a  line  750  feet  each  way  along  the 
supposed  course  of  the  lode.  This  gives  the  center  line 
lengthwise  of  the  claim,  and  from  each  end  of  this  center 
line  measure  75  (or  150)  feet  on  each  side  for  the  end  lines 
on  the  same  course  as  the  line  betiveen  the  center  stakes, 
which  will  give  the  point  at  which  to  set  the  corner  stakes, 
and  also  make  the  end  lines  parallel  as  required  by  law. 

Measuring  the  length  of  the  claim  along  its  center,  with 
an  offset  of  75  feet  (or  150  feet)  at  rightaugles  in  each  direc- 
tion at  discovery  shaft  and  at  each  end  brings  the  same 
result  as  if  both  the  side  lines  as  well  as  the  end  lines  were 
measured. 

Staking  and  Marks  on  Stakes At  each  of  the 

four  real  corners  of  the  claim,  at  the  center  of  each  side 
line,  and  at  each  extra  angle  made  in  the  claim,  set  a 
substantial  stake,  blaze  it  and  mark  the  blazed  part  with 
its  proper  number  and  the  name  of  the  lode.  In  addition 
to  the  number  write  "north  center  side  stake,"  "south  cen- 
ter side  stake,"  "northeast  corner,  etc.,"  as  the  case  may  be, 
and  put  the  name  of  the  lode  on  each  stake. 


40  DISCOVERY  AND  LOCATION. 

The  Statute  requires  each  stake  to  be  hewed  or  marked 
on  the  side  or  sides  in  toward  the  claim.  This  would  be 
satisfied  by  blazing  alone,  but  it  is  customary  to  shave  the 
in  side  (which  indicates  the  relation  of  the  stake  to  the 
claim)  and  mark  with  pencil  the  name  of  the  lode,  number 
of  corner,  etc.,  as  above  directed. 

Any  corner  may  be  called  No.  1;  call  the  other  corner 
on  the  same  end  line  No.  2,  and  proceed  thus  continuously 
around  the  claim,  setting  an  additional  corner  post  at  each 
angle  of  the  claim. 

Position  of  Center  Stakes. — In  the  case  of  the 
Hardin  Lode,  the  claim  was  surveyed  600  feet  in  one  direc- 
tion and  900  feet  in  the  opposite  direction  from  center  of 
discovery.  The  center  stakes  were  placed  opposite  dis- 
covery, which  left  them  each  1.50  feet  from  their  proper 
places.  The  Supreme  Court  held  that  they  could  not  be 
considered  as  substantially  in  the  center ;  but  on  the  other 
hand,  they  held  that  if  the  corner  posts  were  properly 
on  the  ground,  the  absence  of  center  stakes  did  not  inval- 
idate the  location. — Pollard  v.  Shively,  2  M.  B.  229. 

Tieing  the  Claim. — In  addition  to  staking  the 
boundaries,  it  is  essential  to  have  suificieut  ties  by  which  to 
identify  the  claim  in  the  lecation  certificate.  'J  he  use  of 
the  bearings  to  mountain  peaks  used  by  surveyors  with  in- 
struments is  impracticable  in  this  kind  of  survey — take 
instead  of  such  monuments,  marks  carved  on  prominent 
boulders  or  prominent  blazed  trees,  neighboring  shafts  or 
shaft-houses.  Anything  which  is  a  "natural  object"  or 
"permanent  monument"  (and  reasonably  substantial  and 
prominent)   is  suflScient  to  identify  the  claim.    From  the 

Note.— No  specific  number  of  ties  are  required,  but  at  least 
two  or  three  different  monuments  should  be  selected  for  such 
purpose. 


DISCOVERy  AND  LOCATION.  41 

center  of  the  discovery  and  from  at  least  one  of  the  corner 
posts  take  careful  measurements  of  the  exact  distance  to 
such  monuments  (the  most  prominent  possible  under  th'e 
circumstances)  as  have  been  selected  to  use  in  the  location 
certificate  to  tie,  describe  or  identify  the  claim. 

What  are  Sufficient  Ties. — A  tree  blazed  or  other- 
wise referred  to  by  some  peculiarity  as  in  the  Colorado  case, 
"a  double  spruce  tree,"  has  been  declared  a  sufficient  monu- 
ment. In  certain  places  trees  might  be  the  only  objects 
available,  and  have  been  considered  good  boundary  monu- 
ments from  time  immemorial.  A  neighboring  shaft  or  a 
prominent  post  firmly  fixed  in  the  ground  is  a  good  monu- 
ment.— Jupiter  Co.  v.  Bodie  Co.,  4  M.  R.  412. 

Calling  for   Adjoininsj  Claims  as  Monuments. 

— A  well  known  claim  called  for  as  an  adjoiner  or  as  a  wit- 
ness is  permissable  as  a  part  of  tiie  general  description,  but 
it  has  been  held  that  this  is  not  of  itself  sufficient,  such  a 
call  being  for  neither  a  natural  object  or  permanent  monu- 
ment.— Ba.rfer  Co.  v.  Patterson,  '.i  Pac.  741.  Driimmond  v. 
Long,  13  Pac.  Hi'-i.     Gilpin  Co.  v.  Drake,  8  Colo.  58G. 

On  the  other  hand  a  notice  calling  for  adjoiners  on  all 
four  sides  was  held  valid,  although  the  claim  was  described 
as  in  a  quarter  section  difierent  from  the  true  one. — Duryea 
V.  Boucher,  7  Pac.  421. 

Technical  Description  by  Metes  and  Courses 
not  JbJssentml.— A  record  based  on  a  location  made  as 
above  directed,  the  corners  and  side  stakes  being  marked 
and  the  notice  set,  which  so  identifies  the  situation  of  the 
claim  O^y  reference  to  natural  objects  or  permanent  monu- 
ments tied  to  its  discovery  shaft  or  corners)  that  it  may  be 
readily  found  by  a  stranger  examining  the  record,  and  for 
courses  calls  for  some  certain  general  direction  and   other- 


42  DISCOVERY  AND  LOCATION. 

wise  complies  with  all  the  statutory  requirements  herein 
stated — is  as  valid  as  one  which  calls  for  degrees,  minutes, 
metes  and  bounds. 

Precautions  at  Time  of  Location. — The  side 
and  corner  stakes  being  properly  set,  the  location  stake 
fixed  and  properly  inscribed,  and  the  ties  or  monuments 
measured,  take  the  precaution  at  the  time  to  measure  the 
depth  of  the  discovery  shaft  to  see  that  the  full  ten  feet  in 
depth  exist,  recollecting  that  the  collar  is  apt  to  cave  in  and 
the  bottom  to  fill  up  with  soil,  inviting  an  attack  on  the 
location  for  want  of  legal  discovery.  Note  also  the  exact 
result  of  this  measurement  on  the  location  stake. 

Size  of  Stakes,  Etc. — The  statute  says  that  the 
posts  shall  be  substantial  and  shall  be  sunk  in  the  ground. 
The  surveyors'  rules,  which  are  more  specific,  require  them 
to  be  not  less  than  four  inches  in  diameter,  four  and  one- 
half  feet  long,  and  set  twelve  iuches  in  the  ground. — Rule 
19,  "Surveyors'  Eules." 

In  Pollard  v.  BUvely,  2  M.  R.  229,  the  Court  held  that  a 
stump  properly  marked  might  be  adopted  as  a  boundary 
stake,  and  there  is  no  doubt  that  a  stone  post  literally  com- 
plies with  the  law. 

Where  Stakes  Cannot  be  Set. — Where  a  stake 
cannot  be  driven  on  account  of  bed-rock,  it  should  be  fixed 
in  a  pile  of  stones,  and  in  ofiicial  surveys  this  marking  is 
required  in  all  cases.  Where  a  stake  cannot  be  set  on 
account  of  precipitous  ground,  the  witness  stake  should  be 
set  as  near  as  possible,  and  on  it  should  be  expressed  the 
course  and  distance  to  the  corner  or  center  stake,  for  which 
it  is  a  substitute. 


DISCOVERY   AND   LOCATION. 


43 


DIAGRAM  OF  SURVEY. 


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44  DISCOVERY  AND  LOCATION. 

Failure  to  get  Stakes. — Where  the  stakes  of  one 
end  of  a  chiim  were  not  set,  merely  because  the  point  was 
difficult  of  access,  it  was  held  that  the  claina  was  not  valid. 
— Croesus  Co.  v.  Colorado  Co.,  19  Fed.  78.  And  as  a  matter 
of  course,  the  failure  to  set  them  through  inadvertence  or 
neglect  would  be  fatal. 

Variation  between  Courses  and  Monuments. — 

As  the  result  of  carelessness,  accident  or  defective  instru- 
ments, variations  between  the  courses  called  for  in  the  record 
and  the  monuments  on  the  ground,  are  matters  of  constant 
occurrence.  The  general  rule  in  such  cases  is  that  the 
monuments  control. — Cullacott  v.  Cash  Co.,  8  Colo.  179. 

But  it  was  held  in  the  Hardin  Lode  case,  2  M.  R.  229, 
that  the  monuments  would  not  control  where  they  varied 
from  the  kind  of  monuments  called  for  in  the  record — that 
a  call  for  a  "post"  was  not  satisfied  by  a  "stump" — and 
further,  that  in  the  case  of  possessory  claims  the  monuments 
must  be  kept  up  so  as  to  be  found  upon  the  ground — and  that 
otherwise  the  calls  in  the  location  certificate  must  control, 
observing  that  this  ruling  was  essential  to  prevent  the  dan- 
ger of  swinging  locations. 

Maintaining  Stakes. — Except  in  such  a  case  as  that 
mentioned  in  the  preceding  paragraph,  we  know  of  no  in- 
stance where,  stakes  havingbeen  once  properly  and  substan- 
tially set  and  the  boundaries  correctly  given  in  the  record, 
a  claimant  has  been  held  bound  to  maintain  his  stakes,  i.  e. 
to  replace  them  when  destroyed  by  accident  or  trespass — 
but  where  not  maintained,  a  mere  misdescription  in  the  rec- 
ord, otherwise  immaterial,  may  become  serious,  if  not  fatal. 


RECORD. 


Essentials  of  Looation  Oertiflcatp  as  Uoqiiirefl  by  R.  S  i,  2S'24. 

—  *  *  *  All  records  of  miniiip  claims  hereafter  made  shall 
contain  the  name  or  names  of  the  locators,  the  date  ot  the  loca- 
tion, and  snch  a  description  of  the  claim  or  chums  located  hy 
reference  to  some  natnral  otjject  or  permanent  mnnnment  as  will 
identify  the  claim.    *    *    *    — .Vec.  .',  A.  C  Jfay  lo,  1872. 

Time  to  File.  M'liat  is  Rpcuiirert  by  State  Law.  .Loratioii  Cer- 
tmcate.— G.  S.  5  iSM'.".— The  discoverer  of  a  lode  shall,  within  three 
months  from  the  date  of  discovery,  record  his  claim  in  the  omce 
of  the  recorder  of  the  connty  in  which  such  lode  is  situated,  by  a 
location  certificate  which  siiall  contain: 

First— 1\\G,  name  of  the  lode. 

6'cccnd— The  name  of  the  locator. 

TAtrd— The  date  of  location. 

Fourth— X\\Q  nnraber  of  feet  in  length  claimed  on  each  side 
of  the  center  of  discovery  shaft. 

^Pj/^/i—The  general  course  of  the  lode  as  near  as  may  be.— 
FeVxj  i:?.  l^^Tl. 

Iiideflnitp  Record  Void.— O.  S.  \  2400.— Any  location  certifi- 
(^ate  of  a  lode  claim  which  shall  not  contain  the  name  of  the  lode , 
the  name  of  the  locator,  the  date  of  location,  the  number  of  lineal 
feet  claimed  on  each  side  of  the  discovery  shaft,  the  general 
course  of  the  lode,  and  such  description  as  shall  identify  the  claim 
with  reasonable  certainty,  shall  be  void.— /birf. 

Separate  Record  of  Each  Claim.— G.  S.  ;  2412.— No  location 
certificate  shall  claim  more  than  one  location,  whether  the  loca- 
tion be  made  bv  one  or  several  locators.  And  if  it  purport  to 
claim  more  than  one  location  it  shall  l)c  absolutely  void,  except 
as  to  the  fir.st  location  therein  described,  and  if  they  are  described 
together,  or  so  that  it  cannot  be  told  which  location  is  first 
described,  the  certificate  shall  be  void  as  to  all.— i6i(i. 

The  Record  Follows  ihe  Liocation,  as  the  loca- 
tion follows  the  discovery.  The  record  is  a  publication  of 
the  location,  and  is  therefore  called  the  location  certificate. 
Many  of  the  old  forms  of  these  certificates  are  not  sufficiently 


46  RECORD  OF  CLAIM. 

specific,  and  the  Surveyor-General  frequently  requires  a 
new  record  to  be  made  before  issuing  order  of  survey,  upon 
application  for  patent. 

Description  of  Claim.  Ties. — The  record  contains 
a  description  of  the  claim  as  staked  on  the  ground.  If  not 
properly  staked,  the  record  does  not  make  a  good  location  ; 
but  if  the  location  has  been  properly  made,  the  record  can 
readily  be  written  so  as  to  describe  it  fully,  whether  located 
by  a  surveyor  or  otherwise.  The  essentials  of  a  valid  loca- 
tion certificate  are  stated  concisely  in  sections  2399,  2400 
and  2412  above  printed,  and  a  form  given  below. 

'I  he  discovery  shaft  should  always  be  treated  as  an 
essential  point  of  description  and  tied  to  some  near  and 
prominent  monument,  with  course  and  distance  therefrom, 
because  it  is  a  much  more  permanent  monument  than  any 
stake  or  corner. 

In  addition,  one  or  more  corners  should  be  tied  to  fur- 
ther "natural  objects  or  permanent  monuments,"  a  govern- 
ment corner  or  discovery  shaft  of  an  approved  survey  being 
unobjectionable. 

FORM  OF  LOCATION  CERTIFICATE. 

Know  all  men  by  these  presents,  That  I,  Mordecai  Col- 
lins  of  the  County  of  Pitkin,  State  of  Colorado,  claim  by  right 
of  discovery  and  location,  fifteen  hundred  feet,  linear  and 
horizontal  measurement,  on  the  Famine  Lode,  along  the  vein 
thereof,  with  all  its  dips,  variations  and  angles  ;  together  with 
seventy-five  feet  in  width  on  each  side  of  the  middle  of  said  vein 
at  the  surface  ;  and  all  veins,  lodes,  ledges,  dei)0sits  and  surface 
ground  within  the  lines  of  said  claim  ;  seven  hundred  and,  fifty 
feet  on  said  lode,  running  south  ,s.")°  east  from  the  center  of  the 
di.scovery  shaft,  and  seven  hn.ndred  o,nd  fifty  feet  rimning  north 
85°  we.s<  "from  said  center  of  discovery  shaft. 

Said  claim  is  sit\iate  on  the  eastern  slope  of  Democrat  moun- 
tain in  Orijflth  Mining  District,  county  of  Clear  Creek,  State  of 
Colorado,  aiid  is  bounded  and  described  as  follows,  tO  wit : 

Beginning  at  corner  No.  1,  (North-west  corner  of  claim,)  from 
which  dee[)  shaft  of  Pestilence  Lode  bears  N.  3  degrees,  E.  20  feet 
and  "X"  chizelled  on  prominent  ledge  of  rock,  bears  South  20  de- 
grees. We.st  90  feet,  and  running  thence  S.  2  degrees.  East  1.50  feet 
to  corner  No.  2;  thence  S.  85  degrees,  East  750  feet,  to  South-center 


HECOHD  OF  CLAIM.  47 

stake  :  thoiioo,  sjimc  course  750  feet  to  corner  No  :! :  thence  North 
2  dotfrees.  West  150  fuot  to  corner  No.  1.  (Nortliciist  corner.)  from 
whicli  hla/eil  i>ine  tree  'J  feet  in  dinnieter  iniiiked  V.,  hears  X. 
8  degrees.  West  t2  feet  :  thence  North  .'n'j  degrees,  West  T.M)  feet  to 
North-center  stake  and  thence  same  course  750  feet  to  the  place 
of  beginning. 

FiDni  discovery  .shaft,  corner  No.  2  of  Ajax  Lode,  .survey  lot 
7S7.  hears  S.  27  degrees.  East  180  feet,  and  discovery  shaft  of 
Achilles  Lode  hears  .<onth  4.i  degrees,  West  210  feet. 

Date  of  discovery.  May  17,  18S7  ;  staked  and  located  June  1, 
1.S87.    Date  of  certilicate,  jnne  1,  1.'<.S7. 

ATTEST  Mordecai  Collins. 

Emilio  I).  DeSofo. 

Priority  of  Record  i.s  so  generally  involved  with 
<luestions  of  priority  of  location  and  of  continued  possession 
that  this  point  has  in  nio.st  cases,  less  weight  than  is  gener- 
ally supposed.  Record  is  the  inception  of  the  written 
title,  hut  the  actual  title  of  a  mining  claim,  properly  fol- 
lowed up,  reaches  ba,ck  to  the  discovery. 

But  if  a  discovery  he  not  followed  by  a  location  and 
record  witliin  the  time  fixed  by  the  Statute,  an  intervening 
record  becomes  the  prior  title.  In  other  words,  the  rights 
acquired  by  discovery  are  forfeited  by  neglect  to  perfect  the 
title  by  location  and  record  ;  and  that  title  which  if  prop- 
erly followed  up  would  have  dated  from  discovery,  will,  if 
it  be  not  so  followed  up.  be  .suspended  in  favor  of  any  valid 
record  made  after  the  expiration  of  three  months  from  the 
prior  discovery,  and  before  any  record  of  such  prior  dis- 
covery. 

Or  a  record  filed  before  the  three  months  have  expired, 
although  based  on  a  junior  discovery,  becomes  the  senior 
title  the  moment  the  time  allowed  to  the  first  discovery  to 
complete  its  record,  has  elapsed  without  such  record  being 
consummated 

The  same  rule  applies  to  any  .senior  locator  who  allows 
tiie  sixty  days  allowed  for  sinking  his  discovery  shaft,  to 
expire  without  reaching  his  required  depth  and  finding  the 
required  crevice. 


48  RECOKD  OK  CLAIM. 

Actual  Possession  without  valid  fiocalion  or 
llecord. — The  cases  upon  tliis  point  require  careful  exam- 
ination to  ascertain  the  distinctions  made  and  even  after 
such  examination  mauifest  inconsistencies  appear. 

One  series  of  cases  states  that  where  a  party  is  in 
actual  possession  no  stranger  can  invaae  such  possession  in 
order  to  initiate  an  adverse  title ;  in  other  words  a  prospec- 
tor cannot  go  upon  the  claiai  however  invalid  or  defective, 
to  sink  a  discovery,  set  up  a  notice  or  plant  stakes.  Phenix 
Co.  V.  Lawrence,  12  31.  R.,  261 ;  North  Noonday  Co.  v.  Orient 
Co.,  9  M.  R.,  524.     Weese  v.  Barker,  7  Colo.,  178. 

Certain  of  the  cases  hold  that  he  may  not  invade  the 
actual  workings  then  or  lately  occupied. — Fa.ron  v.  Barnard, 
9  M.  R.  516.  Others  hold  that  he  may  not  enter  within  the 
lines  of  the  claim. — Eilers  v.  Boatman,  2  Pac.  66. 

The  above  citations  can  lie  justified,  within  certain 
limits,  on  the  principle  of  preserving  the  ])eace  on  the 
public  domain.  But  their  logical  result,  if  taken  without 
qualification,  would  be  that  a  party  in  possession  could  hold 
by  his  possession  alone,  in  disregard  of  any  of  the  require- 
ments of  the  State  Statutes  or  of  the  Acts  of  Congress. 

On  the  other  hand  there  are  many  decisions  to  the 
efi'ect  that  a  party,  after  the  lapse  of  the  statutory  time  to 
complete  location  and  record,  cannot  hold  against  a  claim 
later  in  discovery  but  which  has  been  the  first  to  complete 
a  valid  location  and  record  iiuder  the  Statute — that  a  miner 
can  hold  his  claim  only  by  compliance  with  the  regulations 
prescribed  by  the  owner  of  the  fee  (the  United  States)  and 
the  State  or  district  regulations  which  such  owner  has 
authorized.— JfciTijtstri/  v.  Clark,  4  Mont.  395;  Noyes  v.  Black, 


RKCORD  OF  CLAIM.  49 

Id.  527;  Ilorswell  v.  Ruiz,  7  Pac.  197;  Garfield  Co.  r.  Hammer, 
8  Pac.  153;  Gleeson  r.  Marfin  mtite  Co.,  9  M.  E.  435;  Sweet  v. 
WeMier,  7  Colo.  443;  Lalande  v.  McDonald,  13  Pac.  319;  DiiPrat 
V.  James,  Go  Cal.  555. 

No  exact  rule  can  be  laid  down  to  meet  every  variation 
in  which  the  question  could  present  itself,  but  after  couced- 
inp  that  a  niau'^  actual  occupation  of  his  workings  may 
not  be  invaded,  and  that  a  drift  would  amount  to  such 
actual  occupation  of  the  vein  for  the  length  of  such  drift 
upon  the  vein  above  and  below;  and  that  an  adverse  entry 
would  not  be  allowed  so  near  to,  although  not  actually 
npon,  the  workings  of  the  prior  party  as  to  threaten  to  pro- 
voke a  breach  of  the  peace, — it  would  seem  that  after  such 
concessions,  the  first  party  having  made  no  record,  or  no 
location  certificate  amounting  to  a  valid  record,  or  having 
otherwise  failed  in  any  essential  point  necessary  to  consti- 
tute a  valid  location,  the  ground  would  be  open  to  the  loca- 
tion and  record  of  a  valid  claim  thereon. 

The  Supreme  Court  of  the  United  States  says  "such 
location  is  a  condition  precedent  to  the  grant.  Mere  pos- 
session not  based  upon  a  valid  location  would  not  prevent  a 
valid  location  under  the  law."" — Belk  v.  Meiujher,  1  M.  K.  534. 

Record  Complete  Before  Adverse  Rights 
Tniiiated. — Xotwithstandiug  delay  to  record  «r  delay  to 
sink  discovery  or  to  set  stakes  or  to  find  a  well  defined  crev- 
ice or  to  do  any  other  essential  act  of  location,  it  has  been 
repeatedly  and  in  many  forms  held  that  if  at  length  the 
record  or  location  be  in  fact  perfected  before  the  hostile 
title  had  its  inception,  that  the  title  to  such  delayed  but 
finally  completed  location  is  perfect  as  to  an\  later  initiated 
title,  and  that  the  last  a?t  of  location  relates  back  to  and 
the  title  begins  from  the  original  date  of  discovery. — Mc- 
Ginnis  v.  Egbert,  8  Colo.  41. 


50  RECORD  OF  CLAIM. 

If  all  Parties  are  in  Default  as  to  completing 
their  location  and  record  within  the  time  allowed  by  law, 
the  first  record  based  upon  a  valid  discovery  and  location 
takes  the  ground  without  regard  to  priority  of  discovery. 

Possession  during  Locating  Period.  —  The 
possession  of  the  prospector  during  the  period  allowed  by 
law  to  complete  his  location  and  record  is  protected,  altho' 
he  has  so  far  no  paper  title.     Erhardt  v.  Boaro,  113  U.  8.,  527. 

And  his  location  certificate  when  recorded  relates  back 
to  the  date  of  his  discovery. 

And  no  party  can  intrude  within  his  lines  marked  out 
or  within  the  ground  which  he  has  a  right  to  cover  during 
that  period — limited  to  750  feet  on  each  end  of  his  discovery, 
unless  his  prospector's  notice  (p.  31)  fixes  the  number  of 
feet  claimed  each  way. 

Possession,  without  valid  Location  or  Record, 
after  such  period  elapsed.— Possession,  at  all  times, 
without  regard  to  record,  location  or  even  the  fee  simple, 
still  gives  a  certain  title  as  against  a  mere  trespasser,  upon 
which  ejectment  and  other  actions  may  be  maintained; 
Campbell  v.  Ranhin,  1'2  M.  B.,  257:  Hawxhurst  u.  Lander,  Id. 
214.  But  as  we  have  already  intimated  such  right  by  posses- 
sion yields  place  at  once  to  right  by  title,  when  such  title 
is  offered  and  proved.     See  "Ejectment." 

Possession  is  a  title  only  by  sufferance  in  default  of 
something  better — it  is  the  starting  point,  not  the  goal  of 
title — and  will  not  prevail  against  the  fee  simple;  Cour- 
chaiiie  v.  Bullion  Co.  12  3£.  R.,  235;  or  against  a  title  perfected 
under  the  district  rules ;  English  v.  Johnson,  Id.  202 :  or 
against  a  complete  location  and  record  made  in  compliance 
with  tlie  law.    Sears  v.  Taylor,  5  M.  R.  318. 

E.vtensions. — The  paragraph  from  Sec.  2320,  quoted 
on  page  26,  of  itself  disposes  of  all  "extensions"  and  side 
claims,  unless  they  be  of  themselves,  howsoever  named, 
independent  discoveries  and  locations. 


AIJAXDOXMEXT. 


District     and     Territorial     Kesulations. — The 

Territorial  Legislature  by  act  of  Nov.  7,  1861  (G.  S.  ^  2685) 
gave  to  the  district  organizations  the  right  to  declare  that 
an  abandonment  of  claims  should  work  a  forfeiture.  1  bis 
power  was  generally  exercised  by  such  organizations  when 
in  existence,  but  their  rules  have  become  in  Colorado  a 
reminiscense.  It  also  iu  1866  (Territorial  Eev.  Stat.  -Kii) 
passed  a  temporary  act  concerning  certain  claims  at  that 
time  uiiworked.    There  is  no  State  Statute  on  the  subject. 

Coiitincd  to  Po.ssessory  Titles.  Associated 
with  Annual  Tiabor. — Although  the  title  to  mining 
claims  has  bceu  at  all  times  of  that  class  which  might  be 
lost  by  abandonment,  (Ferris  v.  Coover,  10  Cat  631,)  and 
although  a  technical  abandonment  may  at  this  day  be 
proved  with  regard  to  any  sort  of  ijossessory  litle,  the  subject 
has  lost  much  of  its  importance  except  in  connection  with 
the  annual  labor  acts. 

Abandonment  is  a  question  of  fact,  and  the  fact  is  to  be 
found  I'rom  the  intention. — Myers  v.  Spooncr,  9  M.  1\.  519; 
Mallett  V.  Uncle  Sam  Co.,  1  31.  11.  17 ;  Oreamuno  v.  Uncle  Sam 
Co.,  Id.  32.  Desertion  and  abandonment  are  equivalent 
terms. — Dernj  v.  Ross,  1  M.  R.  \. 

Abandonment  being  thus  a  matter  of  intention,  it  fol- 
lows that  if  even  after  doing  his  work  the  miner  should 
deliberately  , leave  it  or  express  permission  to  othej-s  to 
occupy  it,  sucli  manifest  proof  of  intent  would  establish 
abandonment,  though  such  intent  would  have  to  be  strictly 


52  ABANDONMENT. 

proved ;  l)ut  for  all  practical  purposes  the  performance  of 
the  auuual  labor  is  the  test,  and  the  law  of  annual  labor 
inrolves  no  question  of  intent.— Dep?*?/  v.  Williams,  5  M.  R. 
251. 

Ho-w  Proved. — Lapse  of  time,  though  not  conclusive, 
is  an  incident  tending  to  prove  abandonment. — Mallett  v. 
Uncle  Sam  Co.,  1  M.  R.  17.  Leaving  tools  in  the  mine  tends 
to  disprove  it. — Harhtess  r.  Burton,  9  M.  R.  318. 

Subjects  of  Abandonment. — A  leasehold  interest, 
water,  slag  and  tailings,  are  things  which  may  be  lost  by 
abandonment. — Barker  v.  Dale,  8  31.  R.  597;  Dougherty  v. 
Creary,  1  M.  R.  35;  McGoon  v.  Ankeny,  Id.  9. 

Pleading. — Abandonment  need  not  be  specially  plead- 
ed.— Bell  r.  Bed  Rock  Co.,  1  M.  R.  45;  Willson  v.  Cleaveland, 
30  Cal  192. 


ANNUAL  LABOR. 


Annual  Expenrtiturc— R.  S.  ?  2324.  *  *  *  On  each  claim 
located  after  the  tenth  day  of  May,  eighteen  hundred  and  seventy- 
two,  and  until  a  patent  has  been  issued  therefor,  not  less  than  one 
hundred  dollars'  worth  of  labor  shall  be  performed  or  improve- 
ments made  during  each  year.  On  all  claims  located  prior  to  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  ten  dollars'  ' 
worth  of  labor  shall  be  performed  or  improvements  made  by  the 
*firiit  day  of  January,  eighteen  hundred  and  seventy-five,  and 
each  year  thereafter,  for  each  one  hundred  feet  in  length  along 
the  vein  until  a  patent  has  been  issued  therefor;  but  where  such 
claims  are  held  in  common,  such  expenditure  may  be  made  upon 
any  one  claim  ;  and  upon  a  fiiilure  to  comply  with  these  condi- 

*NoTE.— In  the  Revised  Statutes  of  the  United  States,  the 
date  printed  is  June  10,  1S74,  the  compilers  having  overlooked  the 
second  Act  extending  time,  approved  June  G,  1874.— {7.  S.  Statutes 
at  Large,  Vol.  18,  part  3,  page  61. 


ANNUAL   LABOU.  53 

tioris,  the  claim  or  mine  iiiioii  wliicli  such  faihire  necurred  slinll 
be  open  to  reloeiition  in  the  same  mniiiier  as  if  no  location  of  the 
same  had  ever  been  made,  provided  that  the  original  locators, 
their  heirs,  assigns,  or  legal  representatives,  have  not  resumed 
work  upon  the  claim  after  failure  and  before  such  location.  *  *  * 
—Sec.  5,  A.  C,  May  Id,  l.sTL'. 

Af^reement  between  State  and  Coiitrressional  Act.— ?  14.— The 
amount  of  work  done,  or  improvements  made  during  each  year, 
shall  be  that  i)rcscribed  bv  the  laws  of  the  I'nited  States.— Feb '.v. 
y.i,  KH74. 

The  above  section  was  passed  to  harmonize  any  possi- 
ble iliflerence  between  local  and  Congressional  Law  on  this 
subject,  but  was  carelessly  repealed  by  Act  of  Feb.  4,  1876, 
(18T<).  p.  n,o.)  Neither  its  passage  nor  rt'peal,  however, 
were  of  importance,  as  uo  State  Legislation  could  either 
strengthen  or  nullify  the  Act  of  Congress. 

Amenilnient  of  ISS»,    Adoptinir   the   CalPiidar    Tear.—?  2.— 

Tliat  section  twenty-three  hundred  and  twenty-four  of  the 
Revised  .'statures  of 'the  I'nited  States  be  amended  by  adding 
tlie  following  words:  ■' l^rnvidcd.  That  the  period  within  which 
the  work  requiivd  to  be  done  annually  on  all  unpatented  min- 
eral claims  shall  oommenee  on  the  first  day  of  January  succeed- 
ing the  date  of  location  of  such  claim,  and  this  section  shall 
applv  to  all  claims  located  since  the  tenth  day  of  May,  anno 
Dom'ini  eighteen  hundred  and  seventy-two."  Approved  Jan. 
uary  12,  1,H,S(). 

Not  required  by  Statute  before  1872. — Auiuial 
labor  was  not  required  by  either  Territorial  or  United  States 
Law  until  after  the  passage  of  the  A.  C,  Jlay  10,  1872. 

It  was,  however,  often  required  by  District 
Rules.— By  some  of  these  rules  a  man  was  bound  to  <lo 
some  work  upon  his  claim  every  week,  or  every  mouth, 
hut  these  rules  had  invariably  fallen  into  disuse  at  the  time 
of  the  passage  of  the  Act  referred  to. 

The  idea  of  annual  or  periodical  labor  is  not  new  ;  it 
was  a  part  of  the  Spanish  system,  aud  generally  prevailed 
on  the  Pacific  Slope. 


54  ANNUAL,  LABOR. 

The  A.  C,  May  10,  1872.  divided  lodes  into  two  classes 
with  respect  to  labor:  1st.  Lodes  located  before  its  passage. 
2d.  Lodes  located  after  its  passage. 

Work    on    Claims    I  ocated    Before    3Iay    lO, 

1872.— The  amount  of  labor  required  ou  all  lodes  was  $10 
for  each  hundred  feet,  but  where  claims  were  held  in  com- 
mon, the  whole  amount  of  work  might  be  done  on  one 
claim.  The  time  for  the  first  work  on  old  lodes  was  origi- 
nally fixed  to  expire  May  10,  1873,  i.  e.,  one  year  after  the 
passage  of  the  Act.  It  was  further  extended  to  June  10 
1874,  and  finally  postponed  to  January  1,  1875. 

The  Act  of  1880  makes  no  change  either  in  the  amount 
or  time  of  annual  labor  on  old  claims.  It  has  always  been 
and  still  is,  SIO  for  each  100  feet  during  each  year  of  our 
Lord,  beginning  January  1,  1875;  and  the  time  between 
May  10,  1872,  and  January  1,  1875,  constituted  the  period 
for  the  first  required  labor. 

Where  the  lode  consists  of  undivided  claims  of  100 
or  200  feet  each,  as  in  the  case  of  almost  all  locations 
made  before  May  10,  1872,  any  one  or  more  claims  may 
be  saved  by  the  expenditure  of  >10  worth  of  labor  to 
each  100  feet  which  the  owner  desires  to  segregate  and  hold, 
leaving  the  remainder  to  forfeiture ;  or  when  the  series  of 
claims  are  held  in  common,  the  full  amount  may  be  expend- 
ed upon  any  one  claim,  whether  they  were  originally  re- 
corded as  joint  or  as  several  locations;  but  in  all  cases  where 
less  thau  the  amount  required  to  hold  the  entire  lode  is 
expended,  the  owner,  in  his  proof  of  labor,  should  state  the 
work  as  done  for  the  jmrpose  of  liolding  only  so  many  feet, 
designating  where  they  lie  upou  the  lode. 

AVork  on  Claims  Located  Since  May  lO, 
1872. —  I  lie  various  extensions  of  time  for  work  on  old 
lodes  did  not  apply  to  the  new  lodes.     The  period  for  the 


ANNUAL  r.AHOR,  55 

first  work  was  lu-vrr  cxteiidod,  nor  liii.s  auv  rlianjtu  Ijcen 
made  except  tlie  Act  of  1880;  but  the  chanjio  made  liy  that 
Aet  is  both  material  and  beuclicial.  Tlie  auuual  period  lor 
hibor  on  claims  located  since  May  10,  1872,  began  on  the 
date  of  location,  and  this  date  was  hard  tolix  with  exactness. 
It  might  have  been  the  date  of  discovery,  or  any  date  inter- 
mediate between  discovery  and  record.  The  Act  of  1880 
makes  the  annual  period  now  coincide  with  that  fixed  for 
old  claims,  to-wit,  each  calendar  year. 

Kach  Claim  an  Entirety.  AVorkon  Subdivided 
Claim. — The  LlOO-foot  lodes  being  single  claims  of  that 
length  and  a  certain  amount  of  work  being  required  upon 
the  c/«j»i  and  the  clause  as  to  "ewh  100  feet  in  length  along 
the  vein"  not  applying  to  tliese  new  locations,  it  does  not 
seem  that  a  party,  by  expending  any  portion  of  the  full 
amount,  can  save  any  fractional  purtion  of  his  lode.  But  if  a 
party  own  a  segregated  portion  of  such  claim  :  Is  he  required 
to  do  the  full  amount  essential  to  hold  a  claim,  in  case  the 
•other  owners  refuse  to  contribute? 

It  seems  he  is  under  this  necessity,  and  each  interested 
party  must  see  for  himself  that  the  amount  required  to 
liold  the  claim  is  done  by  some  person,  and  if  the  whole 
burden  falls  upon  ©ne  party,  the  rest  of  the  claim  becomes 
forfeit  to  such  party.  There  is  no  distinction  made  between 
those  who  own  separate  feet  and  those  who  own  undivided 
interests  in  the  claim. 

The  word  "co-owners,"  used  in  the  Act,  does  not  appear 
to  be  used  in  its  ordinary  acceptation,  as  tenants  in  common, 
but  to  include  all  the  owners,  either  in  common  or  after 
they  have  segregated  their  interests;  the  claim  seems  to 
be  treated  as  an  individual  item  so  far  as  the  relations 
between  the  Government  and  the  miner  are  concerned  ; 
if,  therefore,  all  the  labor  is  performed  by  the  owner  of  the 


56  ANNUAL  LABOR. 

East  end,  he  may  claim  forfeit  of  the  West  end  ;  or  if  it  is 
all  performed  by  the  owner  of  an  undivided  half,  he  is  in 
position  to  become  the  sole  owner  by  proper  notice  under 
the  forfeiture  clause  upon  refusal  of  the  otber  co-tenant  to 
contribute  his  proportion.  But  this  is  only  the  apparent 
readiiKj  of  the  Act  as  to  claims  which  have  been  segregated 
into  several  parts,  and  would  give  a  benefit  to  a  party  who 
had  no  more  connection  with  the  other  end  of  the  claim 
than  a  mere  stranger.  Consequently  this  can  only  be 
treated  as  a  suggestion  of  the  true  construction  of  an  Act 
which  is  so  worded  as  to  be  entirely  ambiguous  on  this 
point. 

$30t)  Work  Already  Done.— The  fact  that  suf- 
ficient improvement  ($500  worth,)  has  been  done  to  author- 
ize application  for  patent,  does  not  dispense  with  the  neces- 
sity for  the  annual  expenditure. 

Annual  Labor  atter  Entry. — It  has  been  decided 
that  annual  labor  cannot  be  required  after  entry  in  the 
Land  Office,  although  the  patent  has  not  yet  been  formally- 
issued  ;  and  such  decision  is  clearly  correct,  because  the 
patent,  when  it  issues,  relates  back  to  the  date  of  entry,  and 
so  satisfies  the  wording  of  the  Act,  which  requires  the  an- 
nual labor  each  year  "until  patented." — 5  Land  Oivner,  114. 
Nevertheless,  in  such  case,  a  party  runs  the  risk  of  the  con- 
sequences in  case  his  Receiver's  receipt  should  be  canceled. 

Tiine  During  Which  Labor  Must  be  Cr>in- 
pleted. — On  all  lodes  located  before  or  since  May  10,  1872, 
the  year  for  doing  the  labor  is  cacii  year  of  our  Lord,  begin- 
ning January  1st,  and  ending  December  31st,  always  noting 
that  since  the  act  of  1880  no  annual 'labor  is  required  dur- 
ing the  year  the  location  is  made.     Ilallv.  Hale,  8  Colo.,  351. 

Each  Annual  Period  an  Entirety.— The  owner 
has  the  whole  of  each  year  to  do  his  $100  worth  of  work  or 


ANNUAL    LABOR.  57 

make  his  $100  worth  of  improvements.      Belk  v.  Meagher,  1 
M.  R.  522.    Atkins  v.  Hendree,  2  M.  R.,  328. 

It  therefore  follows  that  if,  for  instance,  he  has  expended 
$100  during  the  tirst  month  of  the  first  year  he  may  wait  until 
the  twelfth  month  of  the  second  year  before  he  does  his 
second  year's  work.  That  such  Is  the  law  admits  of  no 
douht  upon  the  reading  of  the  Act.  At  the  same  time  the 
disi)o.sition  to  take  advantage  of  this  fact  leads  to  delays 
which  often  ultimate  in  allowing  the  whole  time  to  pass  by 
and  the  claim  becomes  liable  to  re-location. 

What  Counts  for  Improvements. — Any  work 
<ione  for  the  purpose  of  discovering  minerals  is  improve- 
ments within  the  spirit  of  the  Statute. —  U.  8.  v.  Iron-Silver 
Co.,  2-1  Fed.  568.  Road  building  counted  as  annual  labor. — 
Mt.  Diablo  Co.  v.  CaUiaon,  9  M.  R.  616.  Flumes,  drains  or 
the  turning  of  a  stream  or  the  sinking  of  a  common  shaft 
will  count.— S<.  Louis  Co.  v.  Kemp.  11  M.  R.  692. 

What  "Will  Not  Count. — A  house  for  use  of  the 
miners  built  200  feet  away  from  the  claim  cannot  be  con- 
sidered as  annual  labor. — Remmingtott  v.  Bandit,  9  Pac.  819. 

Dumping  tailings  on  a  claim  is  no  improvement. — Jack- 
son V.  Roby,  109  U.  S.  440.  '1  raveling  and  expenses  in  get- 
ting ready  to  go  to  work  can  not  be  considered.— JicGnrrity 
r.  liyington,  2  M.  R.  ."311 ;  DuPrat  v.  James,  65  Cal.  555.  Nor 
work  done  by  third  parcies  and  bought  in. — Little  Gunnell  Co. 
V.  Kimber,  1  M.  R.  536. 

Work  Done  Outside  of  Claim  or  on  Group  of 
Claims. — Work  done  beyond  the  lines  will  count  when  it 
has  direct  reference  to  the  drainage  or  development  of  the 
claim. — Packer  v.  Ileaton,  4  M.  R.  447;  Kramer  r.  Settle,  9 
M.  R.  561;  Mt.  Diablo  Co.  v.  Callison,  Id.  616.  Where  sun- 
dry claims  are  worked  together  as  one  group,  the  devel- 


58  ANNUAL  LABOR. 

opment  work,  tLougli  confined  to  a  single  claim,  may  count 
for  all.— Jupiter  Co.  v.  Bodie  Co.,  4  M.  R.  413;  St.  Louis  Co.  v.. 
Kemp,  11  M.  R.  692. 

Amount,   how    Estimated.      District   Rules. — 

As  to  such  District  Eules  as  attempt  to  fix  the  value  of  a 
day's  labor  above  its  real  cost  in  estimating  the  amount  of 
work  done,_they  amount  to  absolutely  nothing.  The  "fiat" 
does  not  alter  the  "fact."  The  true  measure  is  the  real 
cost.  And  if  the  work  has  been  done,  or  the  materials 
furnished  by  the  owner  himself,  the  measure  of  value  is 
what  it  would  have  cost  to  procure  the  same  labor  and 
materials  from  a  second  party.  In  other  words,  the  market 
value  of  the  labor  and  materials. — Quimby  v.  Boyd,  8  Coh:. 
194,  342, 

Performance  of  Annua]  Labor  After  the  Year 
has  Expired.  Two  Parties  Essential  to  Forfeit- 
ure,— The  neglect  to  do  the  annual  labor  required  by  the 
United  States  Government  by  no  means  works  a  forfeiture 
of  the  claim.  To  illustrate:  If  a  lode  was  located  in  ISSO 
and  after  that  year  no  annual  work  was  done  until  1886,. 
(when  a  period  of  five  full  years  would  have  intervened) 
and  in  1886  the  owner  enters  and  performs  his  -$100  worth 
of  work  for  that  year,  he  continues  to  be  the  owner  of  the 
claim,  and  his  title  relates  back  to  the  original  location  of 
1880 ;  provided  always,  that  the  lode  has  not  been  re-located 
in  the  meantime. 

It  requires  two  parties  to  make  a  forfeiture  absolute : 
1st,  the  party  who  abandons;  and  2d,  the  party  who  re-lo- 
cat«s.  The  second  party  therefore  must  take  advantage  of 
the  first  party's  default  before  such  default  can  enure  to  the 
second  party's  benefit. 


ANNUAL  LABOR.  59 

The  ffct  that  failure  to  do  the  work  does  not  ipso  facto 
work  a  forfeiture  aud  the  fact  that  advantage  of  the  default 
must  be  taken  by  some  adverse  party  is  important  in  sev- 
eral classes  of  cases. 

1st.  Where  the  work  done  before  the  neglect  is  neces- 
sary to  complete  the  $500  worth  of  improvements  required 
before  patenting. 

2d.  Where  in  cases  of  ejectment  between  two  claims 
it  is  necessary  to  prove  priority  and  carry  the  tiile  back  to 
the  original  location. 

3d.  Where  a  party  has  neglected  to  do  his  annual 
work  and  a  third  party  has  entered  for  purpose  of  reloca- 
tion. 

4th.  The  fact  that^  neglect  to  do  one  or  more  year's 
labor  does  not.  ipso  facto,  operate  as  a  forfeiture,  is  of  special 
importance  in  the  case  of  overlapping  claims,  where  the 
junior  claim  has  been  worked  and  the  senior  claim  has  not 
been  worked. 

1.  AVhere  the  work  done  before  the  neglect 
is  necessary  to  complete  the  $500  worth  of  Ini- 
l>iovoinents  required  helore  paten«iii}> — Tf  failure 
to  do  one  year's  work  operates,  ipso  facto,  to  defeat  the  loca- 
tion, in  such  case  the  title  would  have  to  date  from  the  date 
of  resumption ;  in  fact,  a  new  location  would  have  to  be 
made  by  the  owner.  But  the  failure  not  having  been  in 
due  time  taken  advantage  of,  the  old  title  remains,  dates 
from  original  discovery,  and  consequentlv  old  work  and 
new  together  count  as  improvements  on  the  claim  for  pur- 
poses of  patenting. 

2.  Where  it  is  Essential  to  Carry  the  Title 
back  to  Discovery.— The  reMarks  of  the  foregoing  par- 
agraph apply  also  to  this  heading.    The  doctrine  of  relation 


60  AN  M  UAL   LABOR. 

always  carries  a  title  back  to  the  first  stej)  in  its  inception, 
always  excepting  where  an  adverse  right  has  intervened. 
As  the  failure  of  itself  works  no  forfeiture,  the  continuity 
in  this  case  is  not  broken.  A  location,  however,  made  over 
a  claim  where  the  work  has  not  been  done  before  bona  fide 
resumption  by  the  owner  would  break  this  continuity  and 
would  take  the  conflict,  whether  it  purported  to  be  a  relo- 
cation of  the  defaulting  claim  or  only  incidentally  took 
some  of  its  ground. 

3.  Where  a  Third  Party  has  entered  lor 
purposes  of  Ke-location. — The  words  of  the  Act  rela- 
tive to  the  latter  class  of  cases  are  as  follows : 

"Provided  that  the  original  "locators,  their  heirs,  assigns,  or 
legal  representatives,  have  not  resumed  work  upon  the  claim  after 
failure  and  before  such  location." 

If  this  location,  or  rather  relocation  of  the  third  party 
is  complete  before  the  re-entry  of  the  original  owner,  of 
course  the  original  owner  is  too  late.  If  on  the  other  hand, 
the  original  owner  has  bona  fide  resumed  work  before  the 
attempted  relocation,  his  original  title  becomes  revested  the 
moment  he  has  completed  an  amount  of  work  equivalent  to 
that  required  for  the  previous  year.  But  where  the  third 
party  has  entered,  and  before  he  completes  his  location,  the 
original  owner  also  enters  and  resumes  work,  the  question 
remains:  Is  such  re-entry  of  the  owner  sufficient  to  defeat 
the  intervening  claimant?  The  Act  says  that  the  owner 
may  resume  work  at  any  time  "before  such  location."  The 
location  of  the  intervenor  is  not  complete  until  he  has  done 
certain  acts,  usually  requiring  several  days  to  consummate. 
The  locator  must  sink  a  shaft  ten  feet  in  depth,  and  set  his 
stakes.  In  the  meantime  has  the  original  owner  the  right 
to  resume  work  ?  It  was  so  decided  by  Stone  J.,  in  the  case 
of  Graydoii  v.  Hood.  In  that  suit  the  Griffith  Lode  was 
shown  to  be  an  1861  discovery.     No  work  had  been  done 


ANNUAL  LABOR.  61 

for  the  year  IbTo.  As  soon  us  thf  titiif  IkkI  expired,  or  was 
about  to  expire,  the  defendant  entered  and  began  to  sink  a 
new  diseovery  shaft.  Witliin  a  few  days  after  December 
31st,  plain  till"  re-entered  and  linished  his  annual  work  before 
the  defendant  had  completed  his  discovery  to  the  lawful 
depth:  Held,  that  the  plaintiff  had  saved  the  forfeiture  by 
performing  such  labor  before  the  defendant  had  comi)leted 
his  location.  The  case  of  Gouh  v.  liussell,  12  31.  li.  (530, 
holds  the  same,  in  terms,  without  any  equivocation.  On 
the  contrary,  llaUett  J.  in  the  case  of  she  Little  (iinntcll  Co. 
V.  Kiinher,  1  M.  li.  'y'M,  iield  tliat  tl.e  party  atteni])ting  to 
take  up  abandoned  property  has  the  same  period  of  three 
months  to  complete  his  location,  which  is  allowed  by  law 
to  a  discoverer;  and  PelU-on  Co.  i.  Stiadgrass,  9  Colo.  339,  is 
to  the  same  effect. 

I  have  little  doubt  of  the  correctness  of  the  latter  opin- 
ion. "  The  condition  of  development  should  be  attached  to 
every  mine;  and  courts  should,  as  far  as  consistent  with 
legal  principles,  maintain  the  construction  of  mining  cus- 
toms which  accomplish  this  end."  Kitig  v.  Edwards,  4  M.  E. 
480;  Russell  V.  Brosseau,  (!•")  c<il.  (iOo. 

Jn  Belcher  Co.  v.  Deferrari,  62  Cat.  IGO,  the  plaintiff  did 
only  one-half  the  required  amount  in  1880.  In  Jan.,  1881, 
he  did  $24  worth  of  work  on  two  claims.  Defendant  relo- 
cated in  August,  1881.  Held,  that  the  plaintiff  had  resumed 
work  and  was  entitled  to  recover.  Such  a  decision  is  only 
trifling  with  the  law  and  the  rights  of  parties  based  on  the 
law. 

A  Re-location  Begun  Before  the  Year  Expires 

is  Xo'id. —Belk  r.  Meagher,  1  M.  R.  522.  The  case  cited  so 
decides,  but  it  would  certainly  seem  that  if  the  party  whose 
claim  was  taken  did  not  either  resume  work  or  take  steps 


62  ANNUAL   LABOR. 

to  recover  by  law  until  after  the  expiration  of  the  ensuing 
annual  period  that  his  laches  would  operate  to  validate  such 
a  relocation,  although  begun  before  the  proper  time. 

4.  Work  not  done  l>y  Senior  Claim  Over-lapped 
by  Junior  Claim. — This  does  not  transfer  the  title  of  the 
over-lapping  portion  from  the  senior  to  the  junior  claim, 
unless  the  junior  lode  makes  its  relocation,  taking  up  the 
over-lapping  ground.  This  it  may  do  as  specially  provided 
in  ?  2409  of  the  Greneral  Statutes,  in  the  clause : 

"  If  at  any  time  the  locator  of  auj;  mining  claim  *  *  *  * 
shall  be  desirous  *  *  *  of  taking  in  any  part  of  an  over-lap- 
ping claim  which  has  been  abandoned,  *  *  *  such  locator, 
or  hLs  assigns,  may  file  an  additional  certificate," 

the  same  as  provided  for  in  other  cases  of  relocation  by  the 
same  section. 

Equity  of  the  Annual  Uabor  Law. — The  opposi- 
tion to  the  requirement  of  annual  labor  so  evident  when  first 
required  by  the  Act  of  1872,  has  gradually  yielded  to  a  con- 
cession of  its  equity  even  in  the  case  of  claims  located  before 
its  passage. 

The  holder  has  no  just  right  to  prevent  the  Government 
disposing  of  such  claims  as  he  is  unwilling  or  unable  to 
work,  to  such  as  are  ready  to  assume  the  risk  and  develop 
the  deposit,  the  estate  of  the  holder  not  being  absolute,  but 
by  implied  contract  and  general  mining  custom  conditioned 
upon  development;  of  which  development  the  Government 
has  merely  fixed  the  amount  by  the  Act  of  1872,  and  that 
at  a  reasonable  limit. 

Development  is  the  condition  upon  which  the  Govern- 
ment allows  the  miner  to  hold  his  possessory  title  and  after- 
wards perfects  it  by  patent.  Erhardt  v.  Boaro,  113  U.  S.  527; 
O'Reilly  v.  Campbell,  116  U.  S.  418 ;  Kramer  v.  Settle,  9.  M.  R. 


61. 


ANNUAL    LABOR.  63 

Proof  of  Annual  Labor.— Thiit  st.'ction  •_Mlii,  of  the  Geiiorul 
Stalutes,  being  section  'JO,  of  cliaptcr  ]>XXIV.  thereof,  entitled 
"Mines,"  be,  uiul  the  same  is  hereby  amended  so  as  to  read  as 
follows : 

2410.  .'^ec.  2»>.  Within  six  months  afteranyset  timeorannnal 
period, allowed  for  the  oerformaiiee  of  labor  or  making  improve- 
ments, upon  any  lode  claim  or  iilaeer  elaim,  the  person  on  who.«e 
behalf  sueh  outlay  was  mudc.  or  some  i)erson  for  him,  may  make 
and  record  in  the  office  uf  the  recorder  of  the  county  wherein 
such  claim  is  situate,  an  athdavit  in  sub.stauce  as  follows :  « 
.Statk  oi-  Colorado,  )  ^^ 
County,  /  -'" 

Before  me,  tue  suijscriber,  personally  appeared  

who,  being  duly  sworn,  saith,  that  at  least 

dollars'  worth  of  work  or  iuiprovements  were  performed  or  made 

upon  (here  describe  elaim  or  part  of  claim),  situate  in 

mining  district,  countv  of ,  State  of  (Colorado,  between 

the day  of  .'. .\.  D and  the 

day  of A.  D Such  expenditure  was  made  by 

or  "at  the  exi>ense  of 

owners  of  said  claim,  for  the  purpose  of  complying  with  the  law 

and  holding  said  claim. 

Jurat.  {Si{/yia1yre.) 

And  such  affidavit,  when  so  recorded,  shall  be  prima  facie 
evidence  of  the  performance  of  such  hjjor  or  the  making  of  such 
improvements.    Sec.  1.   Maf\  Ml,  ist<7.  p.  ;>1J. 

The  above  act  is  a  re-enactment  of  Sec.  15  of  the  Act  of 
Feb.  13,  1874,  altered  so  as  to  include  placer  claims,  and 
making  a  change  in  the  form  of  affidavit,  so  as  to  state  for 
what  year  the  work  was  done. 

Failure  to  File  Affidavit  of  Labor. — The  neglect 
to  ftle  proof  of  labor,  if  the  labor  has  in  fact  been  done, 
would  not  leave  the  lode  open  to  relocation,  and  the  doing 
of. the  labor  can  be  shown  by  oral  testimony. — McGinnis  v. 
Egbert.  8  Colo.  41.  But  the  precaution  to  file  should  by  no 
means  be  neglected.  The  filing  makes  out  the  i)roof  of  the 
fact  of  the  labor  being  done,  which  might  afterwards  be  a 
diflScult  matter  to  show. 

The  great  objection  to  annual  labor,  with  the  profes- 
sional mind,  is  that  it  throws  a  mining  title  ui)on  constant 
proof,  takes  it  oui  of  the  chain  of  title  as  found  recorded, 
and  makes  it  depend  upon  the  existence  of  facts  which  do 


64  ANNUAL   LABOR. 

not  appear  of  record.  This  evil  should  be  obviated  as  far 
as  possible  by  precautions,  such  as  are  above  suggested ;  but, 
after  all,  the  result  remains,  that  no  claim  can  be  considered 
secure  until  a  patent  is  obtained,  and  the  title  reduced  to  a 
record  basis,  and  to  certainty. 

form  of  affidavit  of  labor  performed. 

State  of  Colorado,  } 
tSummit  County,  j  "' 

Before  me  the  subscriber,  personally  appeared  John  A.  M'il- 
loughby,  who  being  duly  sworn,  saith  that  at  least  one  hundred 
dollars  worth  of  work  or  improvements  were  performed  or  made 
upon  the  Chaos  Lode,  situate  on  silver  Mountain,  in  Avalanche 
Mining  District,  County  of  Summit,  State  of  Colorado,  between 
the  tirst  day  of  January,  A.  D.  188G,  and  the  31st  day  of  December, 
A.  D.  1886.  Such  expenditure  was  made  by  or  at  the  expense  of 
John  A.  Willoughby,  owner  (or  one  oftheownersj  of  said  claim, 
for  the  purpose  of  complying  with  the  law  and  holding  said  claim. 

John  A.    WiUoughby. 

Sworn  and  subscribed  before  me  this  fiist  day  of  January, 
A.  D.  1887.  [seal.]  Breeze, 

'  •  Notary  Public. 

A  single  affidavit  may  be  filed  for  the  labor  on  several 
claims. — McGinnis  v.  Egbert,  8  Colo.  41.  And  it  may  be  filed 
before  the  year  elapses. — Id. 


FORFEITURE  TO  CO-OWNER. 


By  Failure  to  do  Annual  Labor.  Notice.— R.  S.,  §  2324.—  *  *  * 
Upon  the  faihire  of  any  one  of  several  co-owner.'?  to  contribute  his 
proportion  of  the  expenditures  required  hereby,  the  co-owners 
who  have  iierformcd  the  labor  or  made  the  improvements  may,  at 
the  expiration  of  the  year,  give  such  delinquent  co-owner  personal 
notice  in  writing  or  notice  by  publication  in  the  nevv.spaper  pub- 
lished nearest  the  claim,  for  at  least  once  a  week  for  ninety  days, 
and  if  at  the  expiration  of  ninety  days  after  such  notice  in  writ- 
ing or  by  publication  such  deliiKiiient  should  fail  or  refuse  to 
contribute  his  proportion  of  the  expenditure  required  by  this 
section,  his  interest  in  the  claim  shall  become  the  property  of  his 
co-owners  who  have  made  the  required  expenditures. —(Sec.  5,  A. 
a  May  10,1872. 


FORFEITURE  TO  CO-OWNER.  65 

Expenditures  in  Excess  of  the  Statutoiy 
Ainoiini. — Althoiif^li  one  co-owuer  has  expended  more 
than  euoufjh  to  hold  the  claim,  the  delinquent  co-owner  to 
save  t]prfeiture  under  the  /Set  of  Congress,  is  only  required 
to  pay  or  tender  his  proportion  of  the  amount  which  the 
law  required  to  be  expended  upon  the  claim. 

The  recovery  of  his  jtroportion  of  additional  expendi- 
tures depends  upon  other  grounds,  and  is  to  be  enforced 
only  by  judicial  proceedings,  involving  the  question  of  min- 
ing partnership,  or  the  expressed  or  im]>lied  assent  of  the 
co-owner  to  the  expenditure  of  the  additional  amount. — 
In  re  Brooks,  5  Land  Owner  4. — Neuman  v.  Dreifursi,  9  Colo. 
228;  McCord  v.  OaMaiul  Q.  Co.,  40  Am.  R.  689. 

If  there  are  Three  Owners  and  one  performs 
all  I  he  Labor,  and  gives  notice  to  his  co-owners,  and  one 
of  them  pays  his  proportion  and  ofiers  to  pay  one-half  and 
join  in  the  division  of  the  forfeited  claim  of  the  third  party, 
I  apprehend  the  second  party  may  refuse  such  proposition., 
the  forfeiture  accruing  solely  to  him  who  has  performed  the 
labor. 

Estoppel. — Wheii  a  co-owner  is  delinquent,  but  the 
party  who  has  made  the  expenditure  afterwards  associates 
with  him  in  developing  the  claim,  it  would  probably  be  con- 
sidered a  waiver  of  the  forfeiture. 

Preservation  ot  Piool. — The  presumption  in  law 
is  always  against  forfeiture,  and  the  jiarty  who  claims  it 
must  be  prepared  to  make  his  proof  in  such  case  ;  therefore 
besides  recording  the  notice,  with  affidavit  of  publication, 
the  party  should  make  declaration  of  the  facts  of  the  case, 
under  which  he  claims  forfeit,  verify  and  record  the  same  ; 
not  that  such,  of  itself,  would  be  evidence,  but  as  furnishing 
notice  to  jiurchasers,  and  also  a  record  which  the  land  office 
would  doubtless  receive  in  application  for  patent,  or  upon 
adverse  claim. — 5  Land  Owner  4. 
3 


66         TO  ENFORCE  FORFEITURE. 

PROCEEDINGS  TO  ENFORCE  FORFEITURE  AND 
TO  MAKE  THE  SAME  APPEAR  OF  RECORD. 


In  the  first  instance  file  the  usual  affidavit  of  labor 
performed,  in  the  form  given  on  page  64. 

The  demand  upon  the  delinquent  must  be  then  made 
^jy  service  of  what  is  commonly  called  the  "  Forfeiture 
Notice."  If  this  is  served  in  person  the  forfeiture  is  com- 
plete in  ninety  days ;  if  by  publication,  which  must  be  in 
the  newspaper  published  nearest  the  claim,  the  forfeiture, 
it  seems,  is  not  complete  until  ninety  days  after  the  last  pub- 
lication.   The  following  is  the  form  of  the 

FORFEITURE   NOTICE.      (a). 

Georgetown,  Colorado, 

January  :5, 1887. 
To  Sam  P.  Rose:— 

»  You  are  hereby  notified  that  I  liave  expended  one  hundred 
■dollars  in  labor  and  improvements  upon  the  Fairfax  Lode, 
situate  on  Republican  Mountain,  in  Griffith  Mining  Di-strict, 
County  of  Clear  Creek,  State  of  Colorado,  of  which  the  location 
certificate  is  found  of  record  in  Book  20,  Page  222,  in  the  office  of 
the  recorder  of  said  county,  in  order  to  hold  said  claim  under  the 
provisions  of  section  2324  of  the  Revised  Statutes  of  the  United 
States,  and  the  amendment  thereto  approved  January  22,  1880, 
concerning  annual  labor  upon  mining  claims,  being  the  amount 
required  to  hold  said  lode  for  the  period  ending  on  the  31st  day 
of  December,  A.  D-  1886.  And  if,  within  ninety  days  from  the 
personal  service  of  this  notice,  or  within  ninety  days  after  tlie 
publication  thereof,  you  fail  or  refuse  to  contribute  your  propor- 
tion of  such  expenditure  as  a  co-owner,  your  interest  in  the  claim 
will  become  the  property  of  the  subscriber  l)y  the  terms  of  said 
section.  IVm.  Spruance. 

If  the  demand  contained  in  this  Forfeiture  Notice  is 
not  complied  with,  within  the  prescribed  period,  it  should 
he  recorded  after  making  proof  of  its  service  or  puhlication, 
■which  can  be  most  readily  done  by  endorsement  upon  the 
Notice  "A"  as  follows; 


TO   KNI'CIRCE  FOUFEITURK.  67 

I'EOOF    OF    FOKFEITURE.       (B). 

Where  the  Forfeiture  I^oiice  has  been  personally  set-ved. 

State  of  Colokado,     \ 
County  of  Clear  Oietk.j"''- 

Williftm  Spruatice  being  duly  sworn  snith :  Tliat  he  served 
tbe  within  forl'eilure  notice  ni)on  {■lain.  P.  Hose,  the  deliniiuent 
co-owner  therein  naniod,  upou  the  ITtli  day  oi Maich,  A.  D.  1S87. 
at  said  county,  by  delivering  to  him  a  true  eoi)y  of  tlie  ^ame  and 
explaining  the  contents  thereof;  and  tlial  said  Roxe  wlmlly  failed 
to  comply  with  tlie  demand  contained  in  said  notice  during  the 
period  of  ninety  days  after  said  dateor  atany  time  since  hitherto. 

}yilliuin  Upruance. 

Sworn  and  subscribed  to  before  me  this  second  day  of  July, 
A.  D.  1887.  I<^unk  J.  Hood, 

[seal.]  Notary  Public. 

The  above  form  completes  the  proceeding  where  the 
notice  has  been  personally  served,  hut  where  it  has  been  by 
publication,  discard  the  form  "  B,"  and  use  tbe  following 
"C"  and  "D." 


..}- 


publisher's  pecof  of  foefeiturk.  (c). 

STATK  ok  C()I.OIi.\DO, 

County  of  Clear  Creek, 

[Copy  of  Notice  "A"  Attached.] 

Jesse  S.  Randall  being  duly  sworn,  saith,  that  he  is  publisher 
of  the  Oeorgetown  Co»ri"r.  a  weekly  newspaper  published  in  said 
County,  nearest  to  the  said  Fair/ax  Lode  Claim,  and  that  the 
above"  notice  was  iiul)lishcd  in  said  pajier  fourteen  successive 
weeks,  the  first  publication  aiipcaring  in  the  issue  oi May  5, 18S7, 
and  the  last  publication  in  the  issue  of  Aufiust  l,  A.  D.  lt*}S7. 

Jesse  iS.  Randall. 

Sworn  and  subscribed  to  before  me  this  fifth  day  of  August, 
A,  D.  1887.  Frank  J.  Hood, 

[SEAL.]  Notary  Public. 

Upon  the  publisher's  proof,  (C)  the  party  who  has  done 
the  work  will  endorse  his  affidavit  of  non-payment  as 
follows ; 

affipavit  of  non-payment,     (d). 

Statf.  of  Colokado,     \^^ 
Comity  of  Clear  Creek,  J  "^" 

}Yiltiam  Spruaytce,  beingduly  sworn,  saith  that  Sam.  P.  Ro.it, 
the  person  named  in  the  forfeiture  notice  attaclied  to  the  within 


68  RELOCATION  OF  CLAIMS. 

-proof  of  publication,  wholly  failed  to  comply  with  the  demand 
contained  in  said  notice  during  the  period  of  said  notice  or  within 
ninety  days  tliereafter.  mUiam  Spruance. 

Sworn  and  subscribed  before  me  this  seventh  day  of  No%'cm- 
ber,  A.  D.  1887.  Frank  J.  Hood, 

[seal.]  Notary  Public. 

These  forms,  "A"  and  "B,"  iu  cases  of  personal  service 
and  "A,"  "C"  and  "D,"  in  cases  of  advertisement,  complete 
the  forfeiture  and  place  its  proof  in  a  shape  where  it  is  rec- 
ognized in  all  Land  office  proceedings  as  the  equivalent  of  a 
deed  from  the  delinquent  party ;  but  when  the  forfeiture 
has  to  be  proved  in  court,  these  ex  parte  proceedings  would 
not  be  recognized  except  the  publisher's  proof,  which  is 
made  evidence  by  statute  G.  S.,  ^  1315. 


RELOCATION   OF    ABINDONED  CLAIJUS. 


statutory  Uoerulation  of  Such  Rc-Location.— G.  S.,  ?  2411.— The 
relocation  of  abandoned  lode  claims  shall  be  by  sinking  a  new 
discovery  shaft  and  fixing  new  boundaries  in  the  same  manner 
as  if  it  were  the  location  of  a  new  claim  ;  or  the  relocator  may 
sink  the  original  discovery  shaft  ten  feet  deeper  than  it  was  at 
the  time  of  abandonment,  and  erect  new  or  adopt  the  old  bound- 
aries, renewing  the  posts  if  removed  or  destroyed.  In  either  ca.se 
a  new  location  stake  shall  be  erected.  In  any  case,  whether  the 
whole  or  part  of  an  abandoned  claim  is  taken,  the  location  cer- 
tificate may  state  that  the  whole  or  any  part  of  the  new  location 
Is  located  as  abandoned  property. — §  10,  Feb.  13,  1874. 

In  the  relocation  of  abandoned  claims,  the  party  locates 
and  records  with  the  same  particularity  as  in  making  an 
original  location  or  record. 

It  has  been  held  that  a  relocation  cannot  be  made  on 
a  blind  working — a  drift  which  had  been  run  underground 
from  the  bottom  of  a  shaft  on  an  adjoining  claim. — Little 
Gunnell  Co.  v.  Kmher,  1  M.  R.  5.36. 


RELOCATION   OF  CLAIMS.  69 

The  fact  of  improvements  already  on  the  ground  does 
not  lessen  the  labor  n'quircd  from  tiie  relocator;  he  must  do 
at  least  ten  feet  of  sinkiuj;  ontiie  old,  or  on  anew  discovery 
shaft;  must  erect  a  new  stake,  and  unless  he  adopts  exactly 
the  old  location,  he  must  sink  new  posts,  or  at  all  events 
must  sec  that  his  boundaries  are  established  on  the  ground. 

The  relocator  is  not  required  to  do  the  labor  for  neglect 
of  which  the  claim  was  forfeited,  although  a  substantial 
relocation  might  require  as  great  an  expenditure;  nor  if  it 
be  an  abanefoned  KiDO  or  liOOO-foot  claim,  can  it  be  relocated 
upon  one  shaft  for  more  than  loOO  feet.  It  is  substantially 
a  location,  the  same  as  if  no  former  location  or  record  had 
<-ver  been  made. 

After  the  annual  period  has  expired,  the  old  claimant 
has  still  the  first  right ;  but  if  he  has  commenced  work  before 
another  party  enters,  he  must  complete  the  full  amount 
r('()uired  with  reasonable  diligence,  as  otherwise  the  claim 
would  remain  forfeit. 

llelocalioii  of  Abamlouc*!  Claims  by  a  Co- 
tenant. — Where  the  several  owners  of  a  claim  have  allowed 
the  annual  period  to  expire  without  doing  the  annual  labor 
it  is  asserted  that  any  one  of  them  may  enter  upon  the 
ground  and  relocate  the  claim  in  his  own  name,  leaving  out 
his  former  co-teiumts.  The  Statute  says  that  after  the  year 
has  expired  without  the  labor  being  done,  the  claim 

"Sliall  be  open  to  relocation  in  the  same  manner  as  if  no 
location  of  the  same  had  ever  been  made." — li.  S.  g  2324. 

But  these  words  are  immediately  followed  by  a  2>rovim 
which  seems  to  make  a  distinction  between  the  rightsof  the 
old  owners  and  the  rights  of  strangers.  It  is  certain  that  if 
all  the  owiH-rs  return  to  the  claim  their  title  would  relate 
buck  to  the  origiuil  discovery  ;  and  it  is  also  a  rule  of  law 
thata  tenant  in  common  cannot  rightfully  do  any  act  which 


70  RELOCATION   OF  CLAIMS. 

is  subversive  of  his  co-tenant's  title,  and  qUite  as  certain  that 
if  he  were  allowed  to  relocate  as  a  stranger  he  must  yield 
liis  prior  claim  absolutely,  and  i)rocecd  in  all  particulars  as 
an  entire  stranger.  The  (luestiou,  tliereforc,  whether  a 
single  co-tenant  can  relocate  at  all,  is  involved  in  great 
doubt.  It  was  held  that  he  could  do  so  in  the  case  of  Strang 
V.  Ryan,  1  M.  B.  18,  but  that  was  a  case  of  forfeiture  under 
district  rules. 

In  Saunders  v.  Mackey,  6  Pac.  361,  a  co-owner  had  agreed 
to  see  the  work  done ;  he  did  not  do  it,  and  afterwards  was 
a  party  to  a  relocation.  The  Court  held  that  the  failure 
operated  to  defeat  the  old  location,  and  that  the  relocation 
was  valid  ;  but  did  not  pass  on  the  point  as  to  whether  or 
not  the  new  location  should  be  held  in  trust  for  the  promisee. 


relo(;ation  of  claims  not  abandoned. 


In  What  Cases  Owner  May  Kelocate.--G.  S. ;;  210!i.  — If  at  any 
time  tlie  locator  of  any  niininK  claim  heretofore  or  hereafter 
located,  or  his  assigns,  shall  apprehend  that  liis  original  certifi- 
cate was  defective,  erroneous,  or  that  the  requirements  ol  the 
law  had  not  been  complied  with  before  filing,  or  shall  be  desirous 
of  changing  his  surface  boundaries,  or  of  taking  in  any  part  of  an 
over-lapping  claim  which  has  been  abandoned,  or  i'n  case  tlie 
original  certificate  was  made  prior  to  the  passage  of  this  law,  and 
he  shall  be  desirous  of  securing  the  benefits  of  this  Act,  .such 
locator,  or  his  assigns,  may  file  an  additional  certificate,  subject 
to  the  provisions  of  this  Act:  Provided,  that  such  relocation  does 
not  interfere  witb  the  existing  riglits  of  others  at  tlie  time  of  such 
relocation,  and  no  such  relocation  or  other  record  thereof  shall 
preclude  the  claimant  (jr  claimants  from  proving  any  such  title 
or  titles  as  he  or  thov  may  have  held  under  previous  location.— 
g]3,ii'e6.  13,  187-1. 

This  is  one  of  the  most  important  sections  of  the  State 
Mining  Act;  it  provides  an  escape  from  the  consequences 
of  the  loose  and  careless  records  of  many  valuable  claims; 


RELOCATION   OF  CLAIMS.  71 

it  also  givc-s  tlie  older  claims  the  opportunity  to  take  tho 
full  width  allowed  by  tlu^  uewlaw;  and  further,  in  case  a 
lode  is  found  to  be  notcoi»tained  in  the  orij^inal  boundaries, 
it  allows  the  error  to  be  corrected.  All  former  rights  aro 
secured  with  the  new  privileges,  and  greater  certainty 
obtained  under  the  relocation. 

In  a  relocation  under  this  section  the  name  of  the  lode 
should  not  be  changed,  and  the  eertilicate  should  show  that 
it  is  a  relocation  and  of  what  lode. 

FORM  OF  CERTIFCATIC    nK   l!i:i.OC.\TTON. 

Know  .\.i.i.  .men  by  tiif.se  presents,  That  J,  Beta  ^f.  JIufj/ies, 
of  the  County  of  Arapahoe.  State  of  Colorado,  claim  by  right  of 
relocation,  fifteen  hundred  feet,  linear  and  horizontal'measure- 
ment,  on  tlie  Kentucku  Lode,  along  the  vein  thereof,  with  all  its 
dilt.-j,  variations  and  angles,  together  with  seventy  five  feet  in 
width  on  each  >ide  of  tlio  middle  of  said  vein  at  the  surface  ;  and 
all  veins,  lodes,  ledges  and  surface  ground  within  the  lines  of 
said  claim  ;  "oU  feet  on  said  lode  running  north  10  degrees  east 
from  the  center  of  the  discovery  shaft,  and  750  feet  running  south 
10  degrees  u'ps<  from  said  center  of  discovery  sliaft.  Said  discovery 
shaft  being  situate  upon  said  lode,  within  the  lines  of  said  claim, 
in  Silver  t/i^  Mining  District,  County  of  Gws/er.  State  of  Colorado; 
said  claim  being  bounded  and  described  as  follows  :  Beginning 
at  corner  No.  1,  {.etc.;  describe  as  in  case  of  original  location,  and 
conclude  as  follows:)  Being  the  same  lode  originally  located  on 
the  first  day  of  May,  A.  D.  ISS-l,  and  recorded  on  the  first  day  of 
,Iune,  A.  I),  is^vf  in  book  7.  i>age  11,  in  the  ollice  of  the  recorder 
of  said  ct>nnty.  This  further  certificate  of  location  is  made 
without  waiver  of  any  previous  rights,  but  to  correct  any  error  in 
prior  location  or  record,  to  secure  all  abandoned  overlapping 
claims,  and  to  secure  all  the  benetits  of  section  'lAW  of  the  General 
Statutes  of  (Colorado.  Date  of  relocation,  ,Iune  7,  ISSil.  Date  of 
certificate,  June  8,  issi;.  Belu  M.  Hughes. 

Attest:  Jcre  Mahoney 

Same  Paitioiilaiity  as  in  Oriyiiial  Location. — 

The  discovery  shaft,  side  and  boundary  posts,  must  be  fo\ind 
on  the  ground  before  any  second  record  is  made,  and  if  the 
relocation  changes  the  boundaries  or  is  made  on  account  of 
any  previous  mistake  or  irregularity,  the  same  should  be 
rectified  before  recording;  and  if  any  substantial  change  is 
made  in  the  description,  it  should  be  set  forth. 


72  RELOCATION  OF  CLAIMS. 

A  new  location  stake  should  also  be  erected  at  the  dis- 
covery, although  possibly,  neglect  to  erect  a  uew  stake  or 
notice  might  not  be  fatal,  because  the  old  stake  could  be 
considered  as  answering  all  purposes  of  notice  the  same  as 
the  old  discovery  shaft  which  does  not  need  to  be  sunk  to 
any  greater  depth  if  it  has  already  the  legal  depth  of  ten 
feet — that  is,  ten  feet  measured  under  the  present  law.  In 
fact  no  change  whatever  upon  the  ground  is  necessary  if  the 
original  location  was. perfectly  regular,  and  the  only  idea 
in  relocating  is  to  formally  appropriate  abandoned  inter- 
ferances  or  to  correct  mistakes  in  the  record. 

Any  attempt  to  alter  the  number  of  feet  claimed  on 
each  side  would  bean  abuse  of  the  intentions  of  the  Act 
unless  the  new  ground  taken  up  continued  wholly  vacant. 

The  intent  of  the  Act  is:  1st,  to  provide  a  recognized 
mode  of  relieving  from  the  consequences  of  clerical  and  other 
mistakes;  and  2ud,  to  give  to  old  locations  the  benefit  of 
the  additional  width  allowed  under  the  new  Act.  It  will 
hardly,  therefore,  be  construed  to  allow  to  any  old  location 
more  than  it  could  claim  as  an  original,  nor  could  it,  without 
being  retrospective,  relieve  against  any  intermediate  adverse 
rights,  accrued  prior  to  the  relocation. 

The  practical  result  has  been,  that  many  of  the  old 
.'JOOO-foot  claims  have  been  cut  down,  the  shorter  claims 
increased,  and  the  old  claims  widened,  so  as  to  produce  a 
uniform  size  of  claim  in  length  and  breadth. 

Amended  Certificate,    without    lielocation.— 

An  additional  or  amended  location  certificate  may  be  filed 
on  old  .3000-foot  claims  for  mere  purpose  of  more  specific 
description,  but  such  claim  cannot  increase  its  width  and  at 
the  .same  time  retain  its  old  length. 

An  additional  or  amended  location  certificate  is  also 
frequently  filed  upon  new  claims  for  the  purpose  of  correct- 


RELOCATION   OF  CLAIMS.  73 

iiif;  or  making  more  particular  the  orij^iiial  record.  This  is 
in  strictness  not  a  relocation,  l)ut  an  additional  certificate 
of  the  original  location,  and  while  the  ahove  form  would 
answer  without  change,  the  followiug  is  more  exact  in  cases 
where  no  change  is  made  in  the  houndaries  and  no  error 
except  indefinite  description  is  to  he  corrcifi'd.  and  no 
overlapping  ground  to  be  taken  up  : 

AMENDED  LOCATION  CERTIFICATE. 

Know  all  men  by  these  presents,  That  I,  Maurice  ^Y.  Levy, 
of  the  county  of  Sedf/ivick.  State  of  Kayisus,  do  hereby  make  and 
flic  this,  my  amended  certificate  of  location  upon  the  Evolution 
Lode  Mininpr  claim,  situate  in  i?oactnfir  Fwks  mining  district, 
county  of  I'Ltkin,  State  of  Colorado,  claiming  one  hundred  and 
fifty  feet  in  width  on  each  sideoftliecenterof  said  lode  at  thosur- 
face.  and  all  veins,  lodes  and  ledges  within  the  lines  of  said  claim, 
witli  their  dips,  variations  and  angles ;  one  thousand  feet  on  said 
lode  running  north  3:5  degrees  ea«<  from  center  of  discovery  shaft, 
and  five  hundred  feet  running  so«//i  22  degrees  west  from  said 
center  of  discovery  shaft.  Said  lode  mining  claim  is  bounded  and 
described  as  loUows,  to-wit :  Beginning  at  corner  No.  1  {describe 
by  metes  and  bounds  with  ties  from  surveyor's  notes)  being  the 
same  lode  of  which  the  (original  location  certificate  (made  bv 
Samuel  Levy)  is  filed  in  book  17,  pa.ge  b\.  in  tlie  olTice  of  the  clerk 
and  recorder  of  sai<l  Pitkin  county.  This  amended  certificate 
is  filed  without  waiver  of  any  previous  rights,  for  the  purpose 
of  correcting  and  making  more  specific  the  boundaries  and 
description  of  said  lode  as  originally  located  upon  the  ground. 

Date  of  original  location,  April  12,  18So.  Date  of  certificate. 
.Tilly  4,  18S7.  Maurice  W.  Levy. 

Such  amended  location  certificate  may  be  filed  even 
after  suit  commenced  (Strepey  v.  Stark,  7  Colo.  G14) ;  and  it 
has  been  held  that  it  relates  back,  where  adverse  rights  have 
not  iutcrveued,  to  the  date  of  the  original  location,  {McG'm- 
nis  V.  Egbert,  8  Colo.  41) ;  and  in  the  case  of  McEvoy  v.  Hyman, 
25  Fed.  .197,  that  it  operated  to  cut  out  an  intervening  claim — 
being  carried  by  relation  back  to  the  date  of  the  original 
record;  but  this  extreme  liolding  discards  the  proviso  of 
O.S.  ^  2409,  which  was  inserted  to  prevent  .such  retrospective 
effect  wliere  adverse  rights  had  arisen. 


UNITED  STATES  PATENT. 


Policy  of  the  Government  as  to  Mineral  Land*:. 

— The  policy  of  the  United  States  has  always  becu  to  pass 
the  fee  simple  title  of  its  lands  to  the  ultimate  purcb.asei, 
but  to  guard  against  monopoly  and  aid  the  actual  occupant 
by  requiring  improvements  to  be  made;  yielding  first  a 
possessory  title,  to  be  followed  by  a  Datent  only  after  a  due 
length  of  time  upon  proper  proof  of  occupation  on  the  part 
of  the  purchaser. 

A  temporary  departure  from  this  rule  was  made  in  the 
attempt  to  lease  the  lead  and  copper  lands  on  the  Mississipi 
and  Lake  Superior. — Lorimier  v.  Lewis,  12  M.  R.  437. 

Salines  have  also  been  generally  held  under  special 
reservations. — Morton  v.  Nebraska,  12  M.  R.  451.  In  re  Eagle 
Salt  Works,  5  Land  Owner  4. 

The  Governmeut  liad  no  occa.sion  to  deal  with  lands 
containing  the  royal  metals  until  the  acquisition  of  (Cali- 
fornia, upon  which  event,  instead  of  adopting  any  system 
of  legislation,  it  merely  reserved  the  mineral  lands  from 
sale  and  acquiesced  in  the  asserted  rights  of  the  prosoector 
and  miner  until  1866. 

In  that  year  was  passed  the  first  of  what  are  known  as 
the  Mining  Acts,  now  embraced  in  Title  32  of  the  Kevised 
Statutes.  This  was  followed  by  the  Acts  of  1870  and  1872, 
with  other  slight  amendments. 

The  ultimate  intent  of  these  Acts  is  to  jiass  the  fee 
8)mi)le  to  the  discoverer  of  a  mine  or  his  grantees,   after  a 


UNITED  STATKS   I'ATKXT.  75 

certain  amount  of  dovelopiueut  has  been  made  upon  tha 
claim,  and  until  final  cntiy  the  locator  holds  by  a  possessory- 
title. 

ProRression  of  Title.— Title  becomes  initiate  by 
discovery;  the  possessory  title  is  complete  upon  location 
and  record;  after  ontr.v  in  the  Land  Office,  altbou<jh  the 
title  is  still  technically  equitable  in  its  nature  it  amounts 
practically  to  the  legal  or  fee  simple,  because : 

1.  The  Land  Office  receipt  for  purchase  money  is  made 
evidence  of  title  by  statute. — G.  S.  ?  1310. 

2.  The  subsequent  issue  of  the  patent  follows  as  a 
mere  ministerial  act,  except  where  some  irregularity  hivs 
occurred  in  the  application. 

3.  Before  entry  is  allowed  the  time  for  the  assertion  of 
any  adverse  title  must  have  elapsed. 

4.  Upon  the  issuance  of  patent,  the  fee  passes  to  the 
purchaser,  and  the  title  relates  back  in  all  cases  to  the  entry 
at  least. 

Choice  of  Land  System^.— It  was  in  the  power  of 
the  United  States  to  have  adopted  any  one  of  several  differ- 
ent systems  in  the  disposition  of  its  mineral  lands ;  but  at 
some  stage,  under  any  system,  a  decision  of  the  conflict- 
ing equities  between  the  adverse  claimants,  would  have  to 
be  reached. 

1.  A  system  based  on  rectangular  surveys,  upon  which 
a  Block  Book  could  be  platted  which  would,  on  its  face» 
establish  the  priority  of  any  assertion  of  title  to  the  Block 
representing  any  certain  mining  claim,  analogous  to  the 
method  adoi)ted  by  the  British  Government  with  reference 
to  the  Australian  gold  fields,  and  the  same  in  outline  as  the 
system  adopted  in  case  of  agricultural  lands,  the  departure 


76  UNITED  STATES  PATENT. 

from  which  iu  yiehliug  to  absurd  prejudice  iu  favor  of 
obsolete  district  rules,  has  caused  nearly  all  the  contention 
which  is  now  common. 

2.  A  system  under  which  every  applicant  would  receive 
a  patent  upon  an  ex  parte  proceeding  without  regard  to 
priority  or  adverse  rights,  leaving  the  several  patentees  to 
contest  their  equities  in  the  courts  upon  an  equal  footing, 
analogous  to  the  old  land  system  of  Virginia. 

3.  A  system  based  on  making  the  proceeding  to  obtain 
patent  a  proceeding  in  rem,  compelling  the  applicant  to  give 
notice  of  his  application  and  forcing  an  adjudication  of  all 
adverse  equities  before  the  issue  of  the  patent,  which  was 
the  Pennsylvania  system. 

The  last  is  the  system  adopted  by  the  Government,  by 
the  original  Act  of  1866,  and  continued  in  all  the  amend- 
ments. 

J  itie  Adjudicated  and  riioiiiies  Settled  before 
Patent  Issues.— The  result  follows  that  upon  the  issue  of 
a  patent  the  patentee  has  cleared  up  all  equities  against 
him,  and  all  supposed  prior  discoveries  and  locations  which 
might  have  interfered  with  him  are  lost,  by  failure  to  assert 
them  as  adverse  claims,  or  to  prove  them  in  the  ejectment 
suit  brought  in  support  of  the  adverse  claim. — Silver  Boxc  Co. 
V.  Clarke,  5  Pac.  570;  Raunheim  v.  Dahl,  9  Pac.  892. 

The  publication  required  by  the  Mining  Acts  "is  in 
efiect  a  summons  to  all  persons  whose  interests  may  be 
affected  by  the  issuance  of  a  patent,"  to  appearand  filetheir 
adverse  claims. —  Wolfley  v.  Lebanon  M.  Co.,  13  M.  R.  — : 
Wiijld  V.  Dubois,  21  Fed.  69:5. 

The  Doctrine  of  Relation.     Failure  to  Adverse. 
—The  question  then  of  the  priority  of  title  between  two 
-patents  supposed  to  cover  the  same  vein  ceases  to  be  a  ques- 
tion of  prior    discovery  or  prior  location,  and  rests  upon 


I'NITKD  feTA'l'ES   PATENT.  77 

such  priority  as  is  obtained  by  proceedings  whicli  ultimate 
in  the  issue  of  a  patent.  J  he  question  of  real  difliculty  is 
when  to  fix  tliis  date.  It  relates  as  far  back  as  the  date  of 
entry  beyond  all  doubt,  although  it  is  quite  possible  for  a 
party  who  lias  com|iletcd  his  notice,  posting  and  all  other 
preliminaries,  to  delay,  or  be  delayed  in,  final  entry  and 
payment  for  a  considerable  period.  Ths  entry  when  made 
excepts  all  previous  approved  surveys;  the  official  survey 
when  approved  excepts  all  previous  approved  surveys;  upon 
the  official  survey,  or  at  least  upon  the  approval  of  the 
official  survey  in  the  Surveyor-General's  office  is  the  first 
period  at  which  the  officers  of  the  United  States  recognize 
the  segregation  of  the  claim  from  the  mass  of  tlic  public 
domain  ;  from  this  point  the  claim  so  first  segregated  must, 
under  the  practice  of  the  Land  Office  and  Surveyor-GeneraFs 
office,  bo  recognized  by  all  subsctjuent  applicants  for  survey, 
as  prior  in  point  of  time,  and  they  are  compelled  to  exce])t 
from  their  claims  such  previously  approved  survey. 

Back  to  the  entry  then,  but  no  further,  it  would  seem 
that  the  doctrine  of  relation  may  carry  the  patent,  any 
priority  in  discovery,  location  or  otherwise,  being  lost  by 
the  failure  to  file  or  successfully  support  an  adverse  claim. 
—Eurelca  Co.  v.  Richmond  Co.,  i)  M.  R.  578;  420  Mining  Co.  v. 
Jiullion  Co.,  11  M.  R.  608;  Golden  Fleece  Co.  v.  Cable  Co.,  1  M. 
iJ.  120:  Kahnv.Old  Tehgraph  Co.,  11  ilf.  R.  646;  Talbott  r. 
King,  9  Pac.  4.34. 

Many  loose  assertions  are  found  in  these  cases— that  the 
patent  relates  back  to  the  first  initial  step,  to  discovery,  to 
location,  etc. — but  such  expressions  are  always  to  be  consid- 
ered in  connection  with  the  eflect  of  application  for  patent 
and  the  assertion  or  failure  to  a.ssert  an  adverse  claim  : 
if  in  all  cases  a  patent  related  back  to  discovery,  a  claim  of 
1861  patented   yesterday  would   supplant  a  patent   wliich 


78  UNITED  STATES   PATENT. 

issued  twenty  years  ago.  Tbe  doctrine  of  relation  is  never 
allowed  to  prevail  to  work  ruauifest  injustice  and  cut  out 
riglits  which  have  intervened  while  he  who  might  have 
been  first  has  slept  upon  his  rights.  In  theory  it  may  be 
said  to  relate  back  to  discovery,  but  with  the  qualification 
made  necessary  by  its  failure  (if  such  has  b(;en  the  case)  to 
adverse  intervening  applications  for  patent. 

The  doctrine  of  relation  has  its  i)ractical  importance  in 
cases  where  proceedings  to  obtain  patent  are  being  urged  by 
parties  hostile  in  interest,  and  it  becomes  necessary  to  decide 
which  party  is  compelled  to  file  his  adverse  claim ;  or  in 
cases  where  patents  have  issued  to  both  of  the  parties  so 
situated,  each  claiming  to  have  been  the  first  in  paint  of 
priority  in  his  proceedings  to  obtain  patent.  It  would 
seem  that,  in  all  such  cases,  the  party  from  whose  survey 
previous  surveys  have  been  regularly  excluded,  is  the  party 
under  the  necessity  of  filing  the  adverse  claim. 

But  where  the  party  holding  the  approved  survey  has 
failed  to  follow  it  by  an  application  in  the  local  Land 
Office,  upon  certificate  of  such  failure  given  by  the  lo(;al 
Land  Office,  the  Surveyor-General  will  discard  the  previous 
survey  and  allow  application  to  be  made  by  the  party  hold- 
ing the  later  survey,  excluding  the  lode  which  has  lost  its 
priority  by  such  failure. 

The  Land  Department  issues  the  first  patent  to  the  first 
applicant,  without  regard  to  the  priority  of  his  possessory 
title,  and  in  case  the  senior  ])osscs5ory  title  fail  to  assert  its 
seniority  by  filing  and  prosecuting  its  adverse  claim,  the 
seniority  of  such  possessory  title  is  lost,  and  yields  to  the 
title  which  the  Government  issues  to  the  applicant  for 
patent.  It  follows  that  the  doctrine  of  i  elation  can  only 
benefit  the  senior  patent,  and  that  the  junior  patent  can 


UNITED  STATES  PATENT.  79 

not  claim  that  its  titlu  to  the  ground  already  given  to  the 
senior  patent,  relates  buck  to  a  time  i)rior  to  the  date  wheu 
the  title  of  the  senior  patentee  accrued. 

Conflict  between  Patents. — In  support  of  these 
views  it  may  be  added  that  it  is  very  doubtful  whether,  in 
fact,  there  are  any  two  patents  (under  the  Act  of  1872) 
wliich  do,  in  fact,  cover  the  same  vein  at  the  same  point. 
From  each  later  survey  have  been  excepted  all  previous 
surveys;  the  entry  follows  the  survey,  and  the  excepted 
ground  is  noc  paid  for.  The  grant  of  the  supposed  vein  to 
the  patentee,  independent  of  surface  ground,  is  a  matter  of 
doubt,  even  upon  the  face  of  the  patent,  when  all  parts  of 
the  instrument  are  construed  together,  not  only  the  surface 
ground  but  the  claim  of  the  prior  party  upon  his  vein  being 
excepted  :  and  whetlier  so  excepted  or  not,  it  did  not  remain 
after  entry  the  property  of  the  Government,  to  be  granted 
to  a  second  or  other  patentee. 

Notwithstanding  this  apparent  exception  of  previous 
entries,  the  system  of  granting  overlapping  patents  is  inde- 
fensible. A  glauce  at  the  j)hit  of  any  late  patent  in  a  well- 
developed  district,  will  introduce  the  subject  to  the  reader; 
three  or  four  surveys,  partly  crossing,  partly  parallel  and 
intersecting  at  all  angles  are  freijuently  seen,  so  that  unless 
the  plat  be  colored,  the  eye  can  scarcely  dietinguish  one 
from  another;  only  the  rigid  application  of  the  rule  of 
preference  to  prior  patents  can  ever  relieve  this  matter  from 
dilHculty;  for  while  the  words  of  a  patent  always  except 
the  surface  and  claim  of  previous  surveys,  they  still  i)roceed 
upon  the  fallible  supposition  that  each  survey  indicates  a 
separate  vein. 

In  cases  of  patents  granted  under  the  old  Act,  where 
no  survey  was  approved  until   after  ajiplication    had    been 


80  UNITED  STATES  PATENT. 

otherwise  perfected,  tlie  subject  requires  an  examination  of 
the  repealed  sections  of  the  Act  of  1886  as  well  as  of  the 
general  principles  above  stated. 

In  the  case  of  contest  between  the  holders  of  the  patent 
to  a  mineral  lot  and  the  holder  of  a  patent  to  the  same 
ground  as  agricultural  or  school  land;  that  is  to  say  where 
the  parties  claim  under  entirely  different  laws,  and  there 
has  been  no  requirement  of  an  adverse  claiai  and  conse- 
quently no  proceeding  in  rem,  the  mining  patent  would 
probably  be  held,  at  least  prima  facie,  to  relate  back  to  the 
original  discovery. — Heydenfelt  v.  Daney  Co.,  13.  M.  R.  204. 

Void  Conditions  in  Patent — The  Land  Office  can 
not  insert  conditions  or  exceptions  not  authorized  by  law 
in  a  patent. — Deffehach  v.  Hawke,  115  U.  8.  392;  Clary  v. 
Haslett,  7  Pac.  701 ;  Tnlbott  r.  King,  9  Pac.  434 ;  Silver  Bow  Co. 
V.  Clarke,  5  Pac.  570. 

Conclusiveness  of  Patent. — A  patent  is  conclusive 
in  all  suits  at  law  (1)  when  valid  on  its  face  and  (2)  when 
not  issued  in  opposition  to  law.  In  any  such  case  it  is  a 
final  disposition  of  the  legal  title  and  must  be  recognized 
by  courts  and  allowed  such  eflFcct. — Bogys  v.  Merced  Co.,  10 
M.  R.  334. 

Patent;  when  Voirl.— If  not  valid  on  its  face  or  if 
issued  in  spite  of  a  law  which  forbade  its  issuance,  it  is  an 
inoperative  paper,  and  may  be  passed  upon  and  excluded  in 
a  suit  at  law — because  it  is  void. — Kahn  v.  Old  Telegraph  Co.> 
11  M.  R.  046 ;  St.  Louis  Co.  v.  Kemp,  Id.  673. 

Patent;  when  Voidable. — But  if  only  irregular,  er 
obtained  by  fraud,  or  issued  to  the  wrong  party,  it  is  only 
voidable,  and  must,  until  set  aside,  or  a  trust  declared  there- 
on, bo  taken  as  conclusive  both  at  law  and  in  equity. — Silver 
Bow  Co.  V.  Clarke,  5  Pac.  570;  Rose  v.  Richmond  Co.,  17  Nev. 
26. 


UNITED  STATKS   I'ATKNT.  81 

AVheii  Obtained  by  Fraud  Against  the  United 

States,  as  whem  iiiiiu'val  huul  has  I)een  entered  as  agricul- 
tural or  upou  false  representations,  the  false  reprcseutatious 
boiug  material  and  the  rights  of  innocent  purchasers  in 
certain  cases  protected  {G.  S.  ^  2262),  it  may  be  set  aside 
at  the  suit  of  the  United  States.  This  requires  action  by 
the  Attorney-Cicneral,  who  directs  the  U.  S.  District  Attor- 
ney to  bring  suit  in  the  U.  S.  Circuit  Court. — Bogfjs  v.  Merced 
Co.,  10  M.  E.  33 1. 

Where  Issued  to  the  AVrong  Party  in  fraud 
of  the  right  of  the  real  owner,  the  suit  is  not  to  set  the 
pateut  aside,  but  to  have  it  declared  that  the  party  to  whom 
it  issued  holds  in  trust,  and  to  compel  by  order  of  court  a 
conveyance  from  him  to  the  party  to  whom  it  should  have 
issued. 

Such  a  suit  can  not  be  maintained  ou  mere  priority  of 
title,  for  here  an  adverse  claim  should  have  beeu  filed,  but 
only  on  the  allegation  of  breach  of  trust  oriu  like  iustauces. 

Irrevocable;  No  Second  Patent. — After  a  patent 
bas  issued,  the  Land  Office  has  no  power  to  cancel  oi  recall 
the  same  nor  to  issue  a  second  patent  for  the  same  land  to 
another  party. — Moore  v.  Robbins,  96  U.  S.  530. 

Canceling  Iteceiver's  Receipt. — But  the  Laud 
Office  has  the  power  to  caucel  the  liecciver's  receipt  aud  all 
prelimiuary  proceedings,  aud  frequently  exercises  this 
piwer  in  case  of  irregularities  in  the  application. 


INTERFERENOE  OF  CLAIMS. 


Veins  Uniting  on  Strike  or  Dip.— R.  S.,  ?  2330.— Where  twcr 
or  more  veins  intersect  or  cross  eacli  otlier,  priority  of  title  shall 
govern,  and  such  prior  location  shall  be  entitled  to  all  ore  or 
mineral  contained  within  the  space  of  intersection  ;  but  the 
subsequent  location  shall  have  the  right  of  way  through  the 
space  of  intersection  for  the  purposes  of  the  convenient  working- 
of  the  mine.  And  where  two  or  more  veins  unite,  the  oldest  or 
prior  location  shall  take  the  vein  below  the  point  of  union, 
including  all  the  space  of  intersection.— §  14,  May  10, 1872. 

Ob.solete  Territorial  Statutes. — In  addition  to  the 
above  Congressional  Act  tliere  were  certain  Territorial  Acts- 
passed  in  1861  still  retained  in  the  last  reprint  of  the  State 
laws  (G.  S.  ?  2391,  2392),  but  they  have  become  practically 
inoperative  since  the  Act  of  1872  requiring  boundaries  to  be 
staked. 

There  was  also  an  Act  (18G1,  p.  167)  in  force  from  1861 
to  1868  requiring  shafts  not  more  than  fifty  feet  apart  to  be 
sunk  in  order  to  prove  up  a  claim. 

3Iiniiig  Acts  based  on  Erroneous  Presumption 
as  to  Facts.  Irregulaiity  of  Veins.— The  cause  of 
the  principal  question  under  this  heading  is  the  fact  that 
the  U.  S.  Mining  Acts  concerning  lode  claims  are  based  on 
the  supposition  or  theory  that  a  lode  is  a  straight  vein  whose 
course  can  be  readily  ascertained  and  indicated  by  a  straight 
line  or  a  series  of  straight  lines;  and  that  occasionally  such 
a  vein  is  crossed  by  another  in  a  similar  straight  line,  merely 
requiring  the  right  of  way  to  give  each  lode  its  proper  claim. 
But  in  fact,  a  lode  is  rarely  a  straight  line ;  it  is  seldom  to 
be  traced  witliout  confusion,  for  more  than  a  few  feet;  and 
in  its  course  other  veins  are  absorbed  into  it;  and  ofi-shoots 


INTERFEKKNCF.  OF  CLAIMS.  83 

(not  only  spurs,  but,  pcrliuiis  better  developetl  veins  than 
itself)  run  from  it  in  all  tortuous  directions;  and  in  its 
extension  downward,  it  invariably  dips  laterally ;  and  often 
shows  a  fork  of  which  both  parts  approach  the  surface;  and 
it  will  divide,  and  may  or  may  not,  unite  at  another  point; 
and  it  will  abut  suddenly  upon  country  rock  and  so  be 
thrown  far  to  one  side;  and  instead  of  showing  distinct 
lines,  mineral  veins  are  as  irregular,  as  dispro portioned  in 
length  and  width,  as  vuucli  intermingled,  as  uncertain  to 
segregate  from  each  other,  as  are  the  veins  of  the  hand,  or 
the  veins  in  a  block  of  marble. 

The  theory  that  each  survey  covers  a  distinct  vein,  or 
that  a  survey  covers  any  vein  at  all,  or  that  its  center  line 
follows  the  apex  of  a  vein,  or  that  its  discovery  shaft  is 
sunk  on  a  vein,  is  all  bare  assumption — these  points  depend 
upon  underground  developments,  and  not  on  diagrams  or 
surface  surveys. 

Presumption  that  the  Survey  Covers  the  "Vein. 
— But  upon  proof  of  discovery  and  location  it  is  inferred 
that  the  survey  lines  include  the  apex  of  the  vein,  and  this 
presumption  throws  the  burden  of  proof  on  the  party  alleg- 
ing a  departure. — Armstrong  v.  Lower,  G  Colo.  585. 


SIDE  VEINS  WITHIN  LOCATION  LINES  BEFORE 
MAY  10,  1872. 


Torritorinl  Act.—?  4.— On  all  minoriil  lodes  or  veins  of  gold- 
bearing  ores,  or  of  silver  or  other  valuable  minerals  in  this  Ter- 
ritory, the  owner  or  owners  of  all  such  deposits  shall,  by  virtue 
of  priority  of  discovery,  be  deemed  and  lield  to  be  the  owner  or 
owners  of  all  spurs,  ofl-shoots,  dips,  uncles,   feeders,  cross  or 


84  SIDE  VEINS. 

parallel  veins  of  any  character  or  name  whatsoever,  lying  and 
being  within  the  limits  of  twenty-five  (25)  feet  in  either  direction 
from  the  center  of  said  first  discovered  lode  or  Yein.—Feb.  9, 1866. 

Congressional  Bounty  or  Confirmation.— R.  S.,  g  2328.— Appli- 
cations for  patents  for  mining-claims  under  former  laws  now 
pending  may  1)0  prosecuted  to  a  final  decision  in  the  General 
Land  Office ;  but  in  such  cases  where  adverse  rights  are  not 
affected  thereby,  patents  may  issue  in  pursuance  of  the  provisions 
of  this  Chapter";  and  all  patents  for  mining-claims  upon  veins  or 
lodes  heretofore  issued  shall  convey  all  the  rights  and  privileges 
conferred  by  this  Chapter  where  no  adverse  rights  existed  on  the 
tenth  day  of  Mav,  eighteen  hundred  and  seventy-two.— §  9,  A.  C. 
May  10,  1872. 

liimited  to  Single  Vein. — Under  the  original  Con- 
gressional Act  of  1366,  no  vein  except  the  first  claimed  was 
covered  by  the  location  or  conveyed  by  the  patent. 

The  section  of  the  Territorial  Act  of  186f>,  above  printed, 
attempted  to  donate  to  the  locator  all  veins  within  twenty- 
five  feet  of  the  center  of  the  first  discovered  lode ;  but  that 
section  is  generally  deemed  to  have  been  in  excess  of  the 
power  of  the  Territorial  Legislature,  in  allowing  to  the 
claimant,  portions  of  the  public  domain  whicli  he  had  neither 
discovered  nor  appropriated. 

A  lode  claim  therefore,  located  before  May  10,  1872, 
originally  covered  but  one  vein,  and  a  patent  issued  before 
that  date  covered  but  one  vein. — Blahe  r.  Butte  Co.,  9  M.  iJ. 
503.  Eclipse  Co.  v.  Spring,  59  Cal.  304. 

Side  Veins  Donated  to  Old  Claims  since  1872. 

— But  by  the  Act  of  1872,  which  gave  to  all  new  locations 
and  future  patents  the  benefit  of  everything  between  their 
side  lines,  it  was  added  that  all  old  locations  and  all  patents 
under  the  old  Act  should  have  the  same  benefit,  always 
saving  any  rights  which  had  intervened  before  the  passage 
of  the  Act  of  18~2.—R.  S.  ^  2.328. 

The  result  of  this  Act  is,  that  a  location  proi)erly  made 
before  May  10,   1872,  or  a  patent  issued    beibre  that  date, 


SIDK   VEINS.  85 

covers  all  side  "vml  other  interfering  veins  practically  to  the 
same  extent,  and  as  fully  as  locations  and  patents?  under 
the  present  law  ;  always  saving  the  exception  in  the  section 
last  above  cited. — Pardee  v.  Murray,  1  Mo7it.  234. 


SlUE    YEINS   ^VITHIN   LOCATION   LIXES  SINCE 
MAY  10,  1872. 


Congressional  Aot.— ^  2o2J.— The  locators  of  all  raining  loca- 
tions heretiifore  made  or\v]iich  shall  hereafter  be  made,  «  *  * 
where  no  adver.-e  claim  exists  *  *  *  «hall  have  the  exclusive 
right  of  possession  and  enjoyment  of  all  the  surface  ineliuled 
within  the  lines  of  their  locations,  and  of  all  veins,  lodes,  and 
ledges  throughout  their  entire  dejith,  the  toj)  or  apex  of  which 
lies  inside  of  such  surface-lines  extended  do^^llward  vertically— 
*    *    *    -?:!.   A.  C.  May  10,  1>H2. 

Prcsnnt  State  Act  Conforming  to  Above  Section.— <>.  S.,  ?  2105. 
—The  location  or  location  certificate  of  any  lode  claim  shall  be 
construed  to  include  all  surface  ground  within  the  surface  lines 
thereof,  and  all  lodes  and  led^res  tiironRhout  iheir  entire  depth, 
the  toi)orapex(if  which  lie  inside  of  such  lines  extended  down- 
ward, vertically,  with  such  parts  of  all  lodes  or  ledges  as  continue 
by  dip  beyond  "the  side  lines  of  the  claim,  but  shall  not  include 
any  portion  of  such  lodes  or  ledges  beyond  the  end  lines  of  the 
claim  or  the  end  lines  continued,  whether  by  dip  or  otherwise, 
or  beyond  the  side  lines  in  anv  other  manner  than  by  the  dip  of 
the  lode.-e  '.».  Feb.  i:i,  Ks7t. 

Under  the  law,  as  it  has  existed  since  May  10,  1872 
(the  Territorial  Act  of  1871  being  merely  conformatory  to 
the  Act  of  Congress),  it  is  clear  tliat  all  veins  whose  tops  or 
apices  are  within  the  lines  of  the  claim  go  with  the  lode 
which  gives  the  name  to  the  claim;  and  the  surface  lines 
rather  than  identity  of  the  veins,  are  made  to  control  the 
extent  of  the  claim,  and  to  fix  the  boundaries  between 
adverse  parties. 


86  CROSS  LODES. 

The  only  possible  exceptions  to  this  general  assertion 
are : 

1.  In  regard  to  what  are  commonly  called  cross- 
lodes  ;  p.  86. 

2.  Where  the  outcrops  of  two  apparent  veins  appear 
on  two  separate  lines  at  the  surface,  but  in  their  downward 
course  such  veins  dip  into  each  other,  unite  and  form  a  sin- 
gle vein ;  p.  90. 

3.  Locations  and  patents  before  May  10,  1872,  where 
adverse  rights  had  intervened  so  as  to  prevent  them  from 
taking  the  benefit  of  the  grant  of  side  veins  under  the  Act 
of  that  date;  p.  83. 


CROSS  LODES. 


Priority  of  Title  Controls.— R.  S.,  ?  233G.— Where  two  or  more 
veins  intersect  or  cross  each  other,  priority  of  title  shall  govern, 
and  such  prior  location  shall  be  entitled  to  all  ore  or  mineral 
contained  within  the  space  of  intersection  ;  but  the  subsequent 
location  shall  have  the  right  of  way  through  the  space  of  inter- 
section for  the  purposes  of  the  convenient  working  of  the  mine. 
*    *    *    —^14.    A.  C.  May  10,  \S72. 

The  above  section  being  a  single  section  of  an  entire 

Act,  must,  if  ambiguous,  be  compared  with  all  other  sections 

of  the   same   Act  which  have  any  bearing  on   the  subject 

matter.     The  only  other  pertinent  portion  of  the  Act  is  that 

part  of  section  2322  (Sec.  3.  A.  0.  Marj  10, 1872),  which  says : 

"The  locators  of  all  mining  locations  *  *  *  where  no 
adverse  claim  exists  on  the  tenth  day  of  May,  eighteen  hundred 
and  .seventy-two,  *  *  *  shall  have  the  exclusive  right  of  pos- 
session and  enjoyment  of  all  the  surface  included  within  the  lines 
of  their  locations,  and  of  all  veins,  lodes,  and  ledges  throughout 
their  entire  depth,  the  top  or  apex  of  which  lies  inside  of  such 
surface-lines  extended  downward  vertically"—     ***** 


CROSS  LODES.  87 

In  the  case  of  lodes  located  under  or  before  the  Act  of 
1866,  a  right  of  way  is  clearly  granted  under  the  two  sec- 
tions above  (luotod.  Those  old  claims  held  but  a  single 
vein,  and  the  owners  of  any  other  vein  had  a  right  to  work 
up  to  the  very  wall  of  the  crossed  vein.  Such  being  the 
case,  the  Act  of  .May  10,  1872,  merely  added  the  easement 
of  the  right  to  work  through  the  crossed  vein  ;  but  as  to 
lodes  located  under  the  Act  of  May  10,  1872,  the  matter  is 
complicated  by  the  fact  that  all  claims  under  that  Act  in 
Colorado  have  a  width  ranging  from  50  feet  to  300  feet,  and 
tiiat  all  veins  within  such  distance  have  been  granted  to 
the  owner  of  the  claim  as  fully  as  the  vein  upon  which  his 
discovery  shaft  is  .sunk. 

Title  lo  the  Space  of  Intersection. — The  question 
has  been  often  stated  in  this  form:  "Does  the  space  of 
intersection,  mentioned  in  Sec.  2336,  mean  the  space  at  the 
actual  crossing  of  the  veins — or  the  space  through  which 
the  cross  lode  runs  from  sideline  to  side  line?"  Hut  this 
question  does  not  reach  the  merits  and  is  based  upon  a  mis- 
understanding or  a  want  of  due  attention  to  the  words  of 
the  Act. 

If  the  cross  lode  have  the  right  of  crossing  at  the  point 
of  actual  vein  crossing  only,  how  is  it  to  be  worked  across  the 
ground  between  the  side  line  and  the  space  of  actual  vein 
intersection?  Of  what  avail  would  such  right  of  crossing  be 
to  those  owning  no  easement  or  estate  in  such  intervening 
ground?  It  is  clear  then  that  to  make  the  Act  have  a. just 
and  sensible  meaning,  the  "space  of  intersection"  refers  to 
the  ^hole  distance  from  side  line  to  side  line,  and  this  being 
decided,  the  n-al  question  remains  :  "To  whom  docs  the  cross 
vein  beloiuj,  throughout  the  space  of  intersection  from  side 
line  to  side  line?" 

Sec.  •2322  had  already  granted  it  to  the  prior  owner  of 
the  crossed  lode.     It  was  within  tlie  jiower  of  t'ongress  to 


88  CROSS  LODES. 

have,  by  a  subsequent  clause,  made  the  crossing  lode  an 
exception  carved  out  of  the  general  grant  of  the  words  of 
the  previous  section;  but  has  it  attempted  so  to  do?  The 
only  grant  of  Sec.  2.336  is,  the  right  of  way,  which  of  itself 
implies  that  it  is  not  a  grant  of  the  vein,  but  of  an  easement 
to  which  the  estate  of  the  prior  location  is  made  servient. 

To  give  any  part  of  the  space  of  intersection  to  the 
holder  of  the  later  location  would  be  to  take  from  the  older 
location  something  already  granted  to  it.  To  create  an 
exception  out  of  his  grant  as  he  originally  takes  it  under 
Act  of  Congress  would  require  in  the  wording  of  the  Act 
expressions  as  strong  as  are  required  to  create  an  exception 
in  a  deed.  An  exception  is  equivalent  to  the  reconveyance 
of  land  already  conveyed.  A  right  of  way  is  not  an  excep- 
tion, but  a  reservation  which  may  be  inferred  from  any 
wording  indicating  an  intention  to  create  an  easement.  It 
takes  nothing  from  the  body  of  the  grant  of  the  first  locator; 
but  compels  the  first  locator  to  use  or  hold  his  grant  or  claim 
subject  to  a  right  or  privilege  of  the  junior  or  overlapping 
claimant,  of  reaching  the  other  end  of  his  claim  by  passage 
through  the  senior  location. 

It  seems  to  the  author,  from  the  above  reasoning,  that 
a  cross  lode,  takes  no  estate  in  the  claim  it  crosses  and  has 
no  rights  as  against  the  crossed  claim  except  the  mere  right 
to  drift  through,  leaving  all  ore  as  the  property  of  the 
crossed  claim. 

Decisions    as    to   Rights   of  Cross    Lodes. — In 

agreement  with  these  views  is  the  case  of  Pardee  v.  Murray, 
4  Mont.  279,  deciding  that  the  prior  location  is  entitled  to 
all  veins  apexing  within  its  lines,  and  that  the  later  loca- 
tion of  a  cross  vein  has  only  the  right  of  way  across  the 
senior  claim;  and  that  if  the  cross  locator  takes  the  ore,  he 
is  a  trespasser.     But  in  disagreement  with  them  is  the  case 


CROSS  LODES.  89 

of  Branaynn  v.  Didaney,  8  Colo.  408,  which  holds  that  a  cross 
vein  isexcepted  out  of  the  claim  of  the  first  locator  (in  this 
case  also  tlu^  holder  of  a  patent  before  the  cross  lode  was 
located)  and  that  the  cross  lode  has  not  onlj'  the  right  of 
way  but  takes  all  the  ore  in  its  vein  within  the  lines  of  the 
claim  crossed  except  at  the  actual  point  of  vein  intersection. 
'J  his  case  was  argued  on  behalf  of  the  cross  lode,  but  settled 
between  the  parties  about  the  same  time,  so  that  no  argu- 
ment was  filed  on  the  oi)posing  side.  On  the  ex  parte  argu- 
ment it  was  decided  witiiout  reference  to  the  Montana  c;ise 
and  upon  a  purely  technical  rule  of  statutory  construction, 
to-wit:  The  rule  that  in  cases  of  ambiguity  not  otherwise 
soluble  the  latter  section  of  an  Act  (i;  14)  will  control  the 
operation  of  a  prior  section  i,^  3)  and  upon  the  sunposition 
that  section  11  was  a  grant  of  the  crossing  vein.  To  the 
same  ett'ect  was  tlie  ruling  in  Hall  v.  Equator  Co.,  Mining 
Rights,  -.id  Ed.,  282. 

Anjjlc  of  Crosslnsr. — In  speaking  of  the  distance 
from  the  side  lines  to  a  supposed  crossing  of  veins,  the  sup- 
position is  of  a  vein  crossing  at  right  angles  which  would 
be  the  case  where  the  strongest  eciuity  could  be  raised  in 
favor  of  the  owner  of  the  cross  vein  ;  but  in  fact  a  cross  lode 
of  such  character  is  of  rar3  occurrence.  Jn  general  the 
crossing  would  be  at  nnich  less  angle,  and  the  less  the  angle 
the  greater  the  intrusion  of  the  cross  vein.  .\  case  can  be 
supposed  of  a  cross  vein  of  greater  length  than  from  end 
line  to  end  line,  and  in  such  case  the  cross  vein  would  claim 
more  than  the  originally  located  lode. — Gleeson  r.  Martin 
IVhit,:  Co.,9  M.  li.  111. 

No    Kiftht    to  Enter  to   Prove    Crossing. — The 

actual  crossing  of  lodes  is  more  often  a  matter  of  conjecture 
than  proof,  and  upon  the  conjecture  of  a  crossing  a  party 
h.'is  no  right  to  enter  upon  the  crossed  claim  to  prospect  for 


90  VEINS   UNITING. 

liis  lode  or  prove  the  crossing.  The  latter  clause  of  Section 
2322  contains  a  proviso  against  the  use  of  the  surface  in  any 
such  case,  and  admitting  the  right  of  crossing  to  the  fullest 
extent,  it  can  be  exercised  only  by  following  the  vein  from 
some  point  outside  of  the  crossed  claim  to  a  point  where  it 
enters  the  crossed  claim,  and  thence  by  drift  along  the 
same. — Atkins  v.  Hendree,  2  M.  R.  328. 


YEINS  UNITING  ON  THE  DIP. 


Prior  Location  or  Title.— R.  S.,  §  2336.  *  *  *  Where  two 
or  more  veins  unite,  the  oldest  or  prior  location  shall  take  the 
vein  below  the  point  of  union,  including  all  the  space  of  inter 
section.— g  14.  A.  C.  May  10,  1872. 

The  above  paragraph  follows  that  part  of  section  2336, 
which  says  that  "priority  of  title  shall  govern"  in  case  of 
interference  of  veins  on  their  strike.  The  ambiguity  of 
the  paragraph  is  in  the  word  "location." 

This  word,  has  its  technical  and  its  popular  meaning. 
Its  technical  application  is  "those  successive  acts  by  Tvhich 
public  land  is  appropriated."  Its  popular  meaning  makes 
it  synonymous  with  the  word  "claim."  Taken  in  connec- 
tion with  the  preceding  paragraph  we  believe  it  to  be  used 
with  the  latter  signification.  Giving  it  such  meaning,  in 
all  cases  of  interference  on  the  dip  the  elder  and  better 
title  will  take  t\w  united  vein. 

Allowing  its  technical  meaning  to  control,  it  might 
happen  that  a  lode  so  uniting  mighc  have  a  senior  discovery 
and  patent,  and  yet  have  a  junior  location. 


VEINS  UNITING.  91 

The  popular  mciiiiing  makes  the  paragraph  consistent 
with  otlier  sections  of  tlic  Act,  and  was  adoi)tc(l  as  tlio  tme 
construction  in  the  case  of  Unit  v.  Equator  Cu. 

If  the  point  arise  between  two  possessory  titles,  the 
lode  having  the  prior  title  (the  oldest  discovery  properly 
followed  up)  would  take  the  vein  below  the  point  of  union. 
If  both  veins  were  patented,  that  patent  which  is  senior  by 
relation  (p.  76)  would  control.  If  one  claim  were  patented 
and  the  other  possessory,  the  patented  vein  would  be  the 
older  and  better  title,  excepting  of  course,  the  case  whcire 
the  possessory  title  held  a  prior  approved  survey,  and  its 
patent  had  been  withheld  from  issue  by  reason  of  the  pen- 
dency of  adverse  suits,  or  otherwise. 

We  are  fully  aware  that  it  might  often  be  difficult  or 
impossible  to  support  an  adverse  claim  in  a  case  of  inter- 
ference on  the  dip,  the  fact  of  the  union  of  veins  not  being 
suspected  or  ascertained  in  due  time ;  but  a  similar  hard- 
ship exists  in  all  cases  where  any  proof  of  identity  of  veins 
is  required,  and  it  could  hardly  have  been  the  intent  of  the 
Government  to  pass  to  that  imrty  who  is  most  diligent  to 
perfect  his  title  by  patent,  a  grant  which  is  liable,  although 
senior  in  time,  to  become  junior  in  fact,  as  the  result  of 
unknown  future  developments. 


DEPARTURE  OF  VEINS   FROM  SIDE  LINES. 


Statement  of  the  Point. — That  the  vein,  and  not 
the  surface,  is  the  material  grant  of  a  patent  to  a  mitiing 
claim  has  not  been  disputed  ;  nor  can  it  be  denied  that  it  is 


92  DEPARTURE  FROM  SIDE  LINES. 

the  iuteutiou  both  of  the  purchaser  in  buying  and  the  Gov- 
ernment in  selling  to  deal  with  the  mineral  deposit,  the 
surface  boing  worthless,  in  itself,  to  either.  And  if  the  • 
case  lay  between  the  Government  and  the  purchaser  alone, 
this  mauife5t  intention  might  prevent  any  attempt  to  con- 
fins  the  party  to  an  erroneous  survey,  giving  him  only  value- 
less surface;  notwithstanding  the  material  fact  that  it  is  the 
patentee,  and  not  the  United  States,  who  has  chosen  the 
lines  which  ])i-o3uce  the  mischief.-  Patterson  v.  Hitchcock,  5 
M.  R.  51-2. 

But  il  is  the  rights  of  innocent  third  parties,  holding 
claims  beyond  the  located  or  patented  side  lines,  which  iias 
rendered  this  question  so  important,  and  which  must  result 
in  maintaining  the  consistent  construction  already  given 
to  the  Act  of  Congress,  confining  every  claim  to  its  own 
lines ;  though  even  if  it  were  a  matter  of  indifference,  this 
holding  requires  no  forced  construction  of  the  Acts  under 
ordinary  rules  of  interpretation,  and  had  been  the  uniform 
ruling  of  the  Judges  on  the  circuit  before  its  confirmation 
by  the  Supreme  Court. 

Unifortnity  of  Rulings  o  i  the  P  Jint. — This  ques- 
tion, however,  with  singular  unanimity  has  been  set  at  rest 
by  the  decisions  of  many  courts.  It  is  now  beyond  contro- 
versy that  the  moment  the  apex  of  a  vein  leaves  either  side 
line  of  its  survey  the  locator  has  no  further  claim  thereto, 
beyond  sucli  point  of  departure. —  Wolfley  v.  Lebanon  Co.,  13 

M.  R., ;  Johnson  v.  Buell,  9  M.  R.  502 ;    The  Flagstaff  case 

(by  the  Supreme  Court  of  the  United  States)  9  M.  R.  607; 
The  Golden  Fleece  case,  (Nevada)  1  M.  R.  120. 

These  decisions  apply  equally  to  patented  and  unpat- 
ented claims,  and  iiave  been  universally  acceded  to  as  the 
only  construction  which  would  give  to  a  mining  claim  the 


DEPARTURE   FItOM   SIDE   LINE8.  93 

same  certaiuty  of  title  which  belongs  to  other  classes  of 
rt'ul  estate  which  arc  free  from  the  complications  of  dips 
ami  departures. 

Pacts  of  the  Golden  Fleece  Case.— The  case  from 
Nevada  is  singularly  illustrative  of  the  injustice  which 
would  result  from  a  contrary  holding. 

The  Golden  Fleece  lode  was  surveyed  and  staked  in 
1.S74,  upon  a  vein  supposed  to  run  N.-W.  and  S.-E.  The 
location  claiming  1500  feet  ran  due  N.-\V.  and  S.-E.,  with 
<)00  feet  width.  Afterwards  developments  by  its  workings 
and  on  the  Leonard  lode,  whose  discovery  was  about  800 
feet  to  the  southwest,  sliowed  that  the  vein  really  ran  at 
right  angles  to  its  originally  supposed  course.  The  Leonard 
lode  having  applied  for  patent,  the  Golden  Fleece  made  a 
second  survey,  at  right  angles  to  the  first,  which  of  course 
embraced  all  the  workings  and  croppings  on  the  Leonard, 
:iih1  then  filed  its  adverse  claim,  based  on  such  relocation. 
Kut  it  w;us  held  that  the  Golden  Fleece  must  be  confined  to 
its  original  location  and  to  that  part  of  the  vein  within  the 
lines  of  such  original  location. 

Same   Holding   on  Old  30-Foot   Patents. — The 

l)atent  in  the  Woljley  case  was  issued  under  the  Act  of  1866, 
so  that  the  decision  necessarily  applies  t©  all  patents ; 
because  the  argument  in  favor  of  following  the  vein,  under 
the  Act  of  ISCiO",  was  much  stronger  than  iu  the  case  of  pat- 
ents under  the  later  Act. 

Not  Color  of  Title. — In  a  later  case  under  the  same 
patent  it  was  held  tliat  where  the  jjateut  owner  had  followed 
his  vein  outside  and  had  held  it  adversely  for  live  years, 
that  he  had  not  even  such  "color  of  title"  as  would  operate 
to  allow  him  the  benefit  of  the  Statute  of  limitatious. — Leb- 
anon Co.  V.  Rogers,  8  Colo.  34. 


94  VEIN  WIDER  THAN  PATENT. 

YEIN  WIDER  THAN  PATE>T. 


In  the  controversy  between  the  Equator  Lode  and  the 
Colorado  Central  Lode  in  the  U.  S.  <  ourt  at  Denver,  the 
lode  was  admitted  by  both  parties  to  be  Et  the  point  of  con- 
flict over  100  feet  wide.  Each  claimed  under  a  patent 
conveying  a  surface  of  50  feet,  the  Equator  covering  the 
southern  portion  of  the  apex  and  the  Colorado  Central,  the 
northern.  The  Court  held  that  in  such  a  case  each  party 
could  hold  only  to  its  side  line,  and  divided  the  lode  by 
extending  the  south  side  line  of  the  Colorado  Central  patent 
vertically  downward  through  the  lode. 

In  the  case  of  Bullion  Co.  v.  Eureka  Co.,  11  Pac.  515,  the 
Supreme  Court  of  Utah  were  divided,  two  Judges  holding 
that  covering  a  part  of  the  apex  gave  a  right  to  the  dip,  and 
the  dissenting  Judge  following  Hall  v.  Equator  Co. 


LOCATION  FAILING  TO  COVER  VEIN. 


If  the  location  fail  to  cover  the  vein,  not  only  is  the 
vein  lost  after  it  leaves  the  side  lines,  but  that  portion  of 
the  location  which  extends  beyond  the  point  where  it  loses 
the  vein,  has  been  decided  to  be  defeasible,  if  not  void, 
having  no  discovery-vein  upon  which  to  base  any  further 
claim,  to  either  surface  or  other  veins  which  may  lie  within 
its  lin&s. — Patterson  v.  Hitchcock,  5  M.  R.  542. 

This  decision  does  not  apply  to  patented  claims;  and 
the  presumption  of  fact  in  all  cases  is  that  a  location  covers 
the  vein  until  the  contrary  is  affirmatively  proved.— ^rm- 
itrong  v.  Lower,  G  Colo.  343. 


L0DE8,  VEINS  AND  LKDGES.  95 

The  reason  that  a  i)atented  claim  is  valid  to  its  full 
extent  for  what  it  docs  cover  is  that  the  patent  is  of  a  "piece 
of  land,"  with  all  the  surface  its  linos  include;  the  patent 
is  supposed  to  have  been  based  on  a  location  made  on  a  vein, 
with  only  the  statutory  width  on  either  side,  and  if  in  fact 
it  was  otherwise,  or  if  the  vein  departed  before  it  reached 
the  end  line,  it  is  too  late  after  patent  for  any  adverse 
claimant  to  set  up  any  such  variations  to  defeat  the  opera- 
tion of  its  grant  to  the  entire  surface  or  to  such  part  of  the 
vein  as  it  does  cover. — Gleeson  v.  Martin  White  Co.,  9  M.  R. 
4->9. 


LODES,  YEI>S  AND  LEDGES. 


Definition  of  the  Terms. —  The  word  "lode"  and 
the  word  "vein"  are  used  indiscriminately  in  the  Acts  of 
Congress  as  well  as  in  the  popular  language,  to  signify  the 
same  thing.  In  Hainbridge  on  mines,  the  text,  page  2. 
defines  them  in  the  same  sentence :  "A  mineral  lode  or  vein 
is  a  flattened  mass  of  metallic  or  earthy  matter,  differing 
materially  from  the  rocks  or  strata  in  which  it  occurs."  A 
note  to  the  same  suggests  the  use  of  the  word  "vein"  a.s 
incorrect,  when  applied  to  such  deposits  as  those  of  anthra- 
cite coal.  Still  the  word  "vein"  is  universally  used  to 
include  coal,  and  other  flat  and  non-metallic  deposits, 
while  the  word  "lode"  is  not  so  used.  This  is  the  only 
distinction  in  the  use  of  the  words.  The  word  "lode"  is  of 
Cornish  origin,  (2  Nev.llQ):  the  word  "vein"  is  of  Latin 
derivation.  In  the  Eureka  case  (9  31.  R.  578)  where,  it  is 
s;iid,  every  known  definition  was  presented  to  the  Court, 


96  LODES,  VEINS  AND  LEDGES. 

the  opinion  does  not  intimate  any  difference  iu  their  mean- 
ing, but  says:  "Those  Acts  give  no  definition  of  the  term 
'lode'.  They  use  it  always  in  connection  with  the  word 
'vein.'  " 

The  word  "ledge"  came  into  use  in  California  after  the 
discovery  of  quartz  mines,  because  they  were  generally 
found  iu  the  hills  above  the  gulches,  and  were  often  iden- 
tified with  protruding  outcrop. 

Connection  with  Context  of  the  Statutes.— The 
only  limitation  or  qualificatiou  in  the  U.  S.  Mining  Statutes 
iu  connection  with  the  words  "veins  or  lodes,"  or  "veins, 
lodes  and  ledges,"  is  the  expression  "of  quartz  or  other  rock 
in  place." 

"In  Plat-e." — These  words  have  been  construed 
material  iu  cases  where  the  vein  has  been  found  eroded  or 
broken  up — material,  however,  only  in  cases  where  it  has 
been  attempted  to  follow  the  claim  on  the  dip.  In  Stevens 
V.  Williams,  1  M.  B.  557,  where  both  the  overlying  and 
underlying  bodies  were  solid,  the  deposit  was  held  to  be  a 
lode  "iu  place." 

In  Tabor  v.  Dexter,  9  31.  E.  (ill,  where  the  location  was 
on  ore  where  the  overlying  rock  had  been  eroded,  the  ore 
body  remaining  covered  only  with  wash  or  gravel,  it  was 
held  that  the  lode  was  not  in  place.  A  like  ruling  was 
made  in  Leadville  Co.  v.  Fitzgerald,  4  M.  R.  380.  The  prac- 
tical point  iu  these  decisions  is  that  where  a  location  is 
claimed  to  be  upon  the  apex  of  a  lode,  it  must  be  upon  .such 
apex  at  a  point  where  it  is  in  place  between  the  original 
enclosing  rocks  to  be  valid  as  such  an  apex  location  as  will 
give  a  right  to  the  dip  ;  but  that  .such  a  location  is  valid  to 
the  side  lines  has  not  been  doubted. 

Rieliness  of  Deposit  not  Material.— In  North 
Noonday  Co.  v.  Orient  Co.,  i)  M.  R.  537,  Sawyer,  J.,  says:   "A 


VEINS,  I.ODKS  AND   I.P^DGES.  97 

vein  or  lode  authorized  to  be  located  is  a  seam  or  fissure  in 
the  earth's  crust  filled  with  quartz,  or  with  some  other  kind 
of  rock  in  place,  carryinj;  gold,  silver  or  other  valuable 
mineral  deposits  named  in  the  Statute.  Jt  may  be  very  thin, 
and  it  may  be  many  feet  thick,  or  thin  in  places — almost  or 
quite  pinched  out,  in  miners'  phrase — and  in  other  places 
widening  out  into  extensive  bodies  of  ore.  So,  also,  in 
placee,  it  may  be  quite  or  nearly  barren,  and  at  other 
places  immensely  rich.  It  is  only  necessary  to  discover  a 
genuine  mineral  vein  or  lode,  whether  small  or  large, 
rich  or  poor,  at  the  point  of  discovery  within  the  lines  of 
the  claim  located,  to  entitle  the  miner  to  make  a  valid 
location  includingthe  vein  or  lode."  It^  validity  as  a  thing 
that  may  be  located  does  not  depend  on  what  it  runs. 

Thero  Must  be  More  than  a  Trace  of  Mineral — 

an   ascertainiil)le  quantity — but  an  assay  of  one  or  more 
ounces  will  suffice.— Stevens  v.  GUI,  1  M.  R.  579. 

Whatever  a  Miner  Would  Follow  with  the 
expectation  of  finding  ore,  or  similar  phrases,  have  been 
adopted  as  a  practical  test  of  what  is  to  be  considered  a 
lode  under  the  Act  of  Congress. — Eureka  Co.  v.  Richmond  Co., 
9  M.  R.  578;  Harrintiton  v.  Chambers,  1  Pac.  362. 

Minora!  Bearinj;  Zone.— A  broad  formation  im- 
pregnated everywhere  with  mineral,  but  traversed  by 
true  fissures  within  itself  cannot  be  considered  as  the  lode; 
the  fissures  within  such  zone  are  the  lodes  and  the  zone  is 
country.— Jlf<.  Diablo  Co.  v.  CaUison,  9  M.  R.  GIG.  Ore  dis- 
tributed generally,  though  unequally,  throughout  the 
entire  mass  of  the  limestone  of  the  mountain  does  not  con- 
stitute a  continuous  lode  such  as  may  be  followed  beyond 
the  lines  of  its  location. — Hyman  v.  Wlieeler,  29  Fed.  354. 

Where  the  Continuity  of  the  Ore  Body  is 
Broken  by  the  Contact  becoming  barren  for  a  consid- 
4 


98  VEINS,  LODES  AND  LEDGES. 

arable  distance,  the  legal  extent  of  Uie  vein  ceases. — Stevens 
V.  WilUams,  1  if.  B.  557 ;  Stevens  v.  Murphy,  4  M.  B.  380.  A 
vein  need  not  be  a  straight  line  nor  uniform  in  dip,  thick- 
ness or  richness  of  ore.  The  enclosing  cleft  or  fissure  may 
narrow  or  even  close  for  a  few  feet  and  be  found  further  on. 
Its  continuity  may  be  proved  by  following  either  the  ore  or 
the  rock  which  carries  the  ore.  Slight  proof  of  ore  is  suffi- 
cient where  the  enclosing  boundaries  are  distinct;  there 
need  be  no  proof  of  such  boundaries  if  the  ore  itself  can  be 
followed.  But  if  the  vein  disappear  so  far  or  so  completely 
that  it  cannot  be  recognized  when  it  is  again  found  or 
alleged  to  be  found,  there  is  no  sufficient  proof  of  contin- 
uity.— Iron  Silver  M.  Co.  v.  Cheesman,  116  U.  S.  530.  Fol- 
lowed substantially  in  Hyman  v.  Wheeler,  supra. 

All  Deposits  "in  l*lace"  are  Lodes. — The  uni- 
form ruling  has  been  that  all  forms  of  mineral  or  mineral 
gangue  in  place,  whether  fissure  or  contact  veins,  or  im- 
pregnations, or  other  irregular  deposits  should  be  construed 
to  come  within  the  expression  "veins  or  lodes"  used  in  the 
Act  of  Congress,  and  as  suijh  to  be  subject  to  location  and 
patent  under  the  act.  There  has  been  in  fact  a  concession 
that  such  should  be  the  holding  rather  than  a  contention 
to  the  contrary.  The  substantial  and  contested  point  has 
been  whether  a  location  or  patent  on  certain  forms  of  de- 
posit was  entitled  by  virtue  of  including  the  apex  or 
so-called  apex  of  the  vein  or  deposit,  to  follow  the  vein  or 
deposit  beyond  the  side  lines  underneath  the  adjoining 
ground  or  claims  of  other  parties.  This  point  will  be  con- 
sidered under  the  next  following  headings,  Apex  and  Dip. 


APEX.  99 

APEX. 

Section  2322  is  the  only  paragraph  of  the  Cougrcssional 
Act  which  refers  to  the  apex  of  a  lode  in  conucction  with 
its  dip.  It  gives  to  the  claimant  all  lodes,  the  top  or  apex 
of  which  lies  inside  of  his  surface  lines  in  these  words : 

"The  locators  of  all  mining  locations  *  *  *  *  *  * 
shall  have  the  o.Kclusive  right  of  possession  and  enjoyment  of  all 
the  surface  incUuled  within  the  lines  of  their  locations,  and  of  all 
veins,  lodes,  and  lodgos  throughout  their  entire  depth,  the  top  or 
apex  of  which  lies  inside  of  such  surface-lines  extended  down- 
ward vertically,  although  such  veins,  lodes,  or  ledges  may  so  far 
depart  from  a  "perpendicular  in  their  course  downward  as  to  ex- 
tend outside  the  vertical  side-lines  of  such  surface  locations." 

The  common  law  grant  of  lands  conveys  the  surface 
and  whatever  minerals  underlie  the  surface  within  lines 
drawn  pcrpeudlcularly  downward  towards  the  center  of 
the  earth. 

The  above  section  implies  a  departure  from  this  rule ; 
a  lode  location  under  its  terras  or  a  patent  issued  upon  such 
location,  being  in  the  case  of  a  location  a  conditional,  in 
the  case  of  a  patent,  an  absolute  grant  (1)  of  the  surface 
(2)  of  the  veins  whose  tops  or  apices  lie  within  its  side 
lines,  wherever  the  dip  may  carry  them :  and  on  the  other 
hand  other  veins  whose  tops  or  apices  are  outside  of  the 
lines,  but  which  dip  underneath  the  location  or  patent,  are 
excepted  in  favor  of  the  proprietor  of  such  underlying 
veins. 

That  such  grant  is  valid  and  capable  of  being  enforced 
no  one  has  doubted,  but  iu  ascertaining  what  lodes  are  in- 
cluded and  what  excluded  in  such  case  in  connection  with 
the  varying  character  of  deposits,  the  tendency  of  veins  at 
times  to  lose  their  continuity  and  the  fact  that  a  location 
seldom  covers  the  apex  of  a  vein  from  end  line  to  eud  line 
has  caused  serious  litigation,  and  while  some  points  have 
been  passed  upon,  others  remain   in  doubt;    and  such  de- 


1 00  APEX. 

cisions  as  have  been  made  have  not  always  been  acquiesced 
in  as  a  final  and  correct  disposition  of  the  points  involved. 

Relation   of  the  Apex  to  the  Side  Lines-— All 

right  to  follow  the  vein  on   the  dip  beyond  the  aide  lines 
depends  upon  three  facts  :     1.  That  the  vein  have  an  apex. 

2.  That  such  apex  be  enclosed  within  the  lines  of  tlie  claim. 

3.  That  such  apex  is  substantially  parallel  to  the  side  lines. 

Conversely  it  follows  that  if  the  vein  be  of  such  a  class 
that  it  cannot  properly  be  said  to  have  an  apex,  or  if  the 
discovery  be  made  on  the  dip  and  so  far  to  one  side  that  the 
side  lines  fail  to  enclose  the  apex,  or  if  the  side  lines  be  laid 
transversely  to  the  strike  of  the  lode,  that  the  side  lines  as 
well  as  the  end  lines  become  vertical  bounding  planes. 

Because  veins  and  lodes  are  granted  by  the  act  of  Con- 
orress  together  with  the  right  to  follow  such  as  have  their 
top  or  apex  within  and  along  certain  lines  it  does  not  fol- 
low contrary  to  the  geological  fact  that  every  vein  must 
have  an  apex  or  that  the  edge  or  any  part  of  the  vein  is 
made  by  fiction  of  law,  its  apex  in  law,  so  as  to  favor  a  con- 
struction acknowledged  to  be  a  departure  from  common 
law  precedents. 

To  What  Oepo^irs  the  Apex  Kii^hts  Extend.— 
Ill  the  case  of  a  true  fissure  vein  covered  by  its  location 
from  end  line  to  end  line  including  the  entire  apex  within 
its  side  lines,  the  right  of  its  owner  to  follow  the  dip  un- 
derneath adjoining  claims  has  never  been  seriously  dis- 
puted. The  only  limitation  to  his  right  would  be  that  a 
location  on  the  dip  made  prior  t3  his  own  would  doubtless 
cut  off  his  further  right  to  follow  the  dip.—Tron  Silver  Co.  v. 
Murphy,  1  M.  R.,  555. 

Outcrop  or  Kdge  of  Vein  Not  Necessarily  the 

Apex.— The  typical  or  true  fissure   vein   is  a  narrow  zone 
of  ore-bearing  rock  descending  indefinitely   in   depth.     It 


APEX  101 

is  essentially  a  perpendicular  formation,  though  always,  or 
nearly  always,  inclining  some  degrees  from  true  ;  this  in- 
clination is  called  its  dip.  The  hounding  planes  of  such 
vein  are  called  its  walls.  The  outcrop  or  nearest  approach 
of  such  a  vein  to  the  surface  is,  and  always  has  been,  prop- 
erly styled  its  apex.  Such  were  the  veins  generally  known 
an  i  worked  on  the  Pacific  slope  at  the  time  of  the  passage  of 
the  Mining  Acts. 

To  give  to  such  veins  the  right  to  their  dip  was  essen- 
tial to  their  full  use  and  enjoyment. 

All  other  classes  of  veins  are  essentially  horizontal  in 
their  formation.  If  found  to  approach  the  perpendicular 
such  fact  is  a-;cidental,  not  incidental— occasional  and  rare, 
not  usual  or  normal.  They  may  be,  like  coal,  a  layer  of 
rock  itself  constituting  a  separate  geological  stratum  ;  or 
they  may  be  a  filling  between  the  planes  of  contact  of  two 
dissimilar  formations;  or  they  may  be  impregnations 
diffused  irregularly  through  a  broad  zone.  Such  deposits 
are  called  beds  or  even  fields,  terms  obviously  inapplicable 
to  perpendicular  deposits.  'Iheir  uppci  boundary  rock  is 
commonly  and  properly  called  the  roof^rarely  the  wall ; 
and  while  they  may  have  an  outcrop,  such  outcrop  was 
never  known  among  miners  as  an  "apex"  until  the  use 
of  such  term  in  the  Mining  Acts  induced  the  attempt  to 
abuse  the  term  by  imposing  it  upon  the  outcrop  of  horizon- 
tal formations. 

The  term  itself  means  the  top  or  highest  point,  and 
has  no  signification  when  applied  to  horizontal  deposits. 

If  the  mining  acts  of  which  we  are  speaking  applied  to 
coal  veins  it  is  obvious  that  the  grant  of  a  square  mile  of 
coal  when  such  grant  happened  to  be  laid  on  the  partic- 
ular section  where  the  higher  edge  of  the  coal  bed 
happened  to  lie,  and  .such  edge  of  the  bed  was  construed  to 
be    its    apex,    would    give    the    right    to    work     the    bed 


UNIVERSITY  OF  SOUTHERN  CALIFORNIA  LIBRARY 


102  APEX. 

through  as  many  miles  as  the  same  field  could  be  found  to 
underlie ;  if  basin-shaped  as  some  formations  are  there 
would  be  two  so-called  apexes,  or  a  circular  apex. 

In  the  case  of  Duggan  v.  Baveij,  26  N.  W.,  901,  2  Dak., 
where  an  eight-degree  vein  having  its  outcrop  on  the  side 
of  a  hill  was  claimed  throughout  the  entire  extent  by  those 
who  had  their  location  upon  tbe  outcrop,  the  court  ruled 
that  such  lode  had  no  apex  and  that  a  location  on  the  dip, 
although  made  after  a  location  on  the  outcrop,  was  valid, 
and  that  the  outcrop  claim  could  not  follow  beyond  its  side 
lines. 

In  the  Leadville  cases  arising  upon  veins  of  the  char- 
acter last  above  described  in  the  U.  S.  Circuit  Court  at 
Denver  any  such  distinction  as  .above  made  has  not  been 
recognized.  But  the  strict  ruling  ®n  other  points,  that 
there  shouhl  have  been  no  prior  location  on  the  dip;  that 
the  apex  location  must  be  made  on  a  vein  in  place,  with 
solid  matter  both  above  and  below  the  vein,  and  the  neces- 
sity of  having  the  apex  parallel  to  the  side,  and  not  parallel 
to  the  end  lines,  which  is  a  practical  impossibility  when 
the  real  deposit  is  a  field,  bed  or  basin,  with  a  more  or  less 
circular  rim  or  outcrop,  have  circumscribed  and  practically 
defeated  most  attempts  to  follow  such  veins  on  their  dip. 


DIP. 


Dip  is  a  proper  mining  term,  and  has  a  plain  and  im- 
portant signification.  It  is  used  along  with  "angles  and 
variations"  in  the  A.  C,  1866,  and  is  with  those  words 
omitted  in  the  A.  C,  1872,  but  its  place  is  supplied  by  the 
phrase    (^  2.322) : 

"All  veins  *  *  *  throughout  their  entire  depth  »  *  • 
although  such  veins  *  *  *  may  m  far  depart  from  a  perpen- 
dicular in  their  course  downward  as  to  extend  outside  the 
veitical  side  lines  of  such  .surface  locations." 


DIP.  103 

It  has  litb'io  importance  except  (1)  in  connection'with 
the  apex  and  (2)  in  connection  incidentally  with  drainage. 

Whether  theahove  grant  of  tlie  right  to  follow  the  dip 
extends  to  all  classes  of  vein  deposits  has  been  considered 
under  the  preceding  heading. 

Cubic  Incidents  of  Lode  Claims. — From  the 
outstart  it  should  bo  kept  iu  view  that  a  lode  claim  is  a 
solid  body  of  ground  and  not  a  "superficies."  Dip  is  only 
one  of  the  incidents  of  this  fact.  A  placer  or  even  a  coal 
bed  furnishes  few  analogies  to  define  the  rights  of  a  claim 
which  leaves  the  surface  at  once  and  follows  its  own  course, 
governed  only  by  its  natural  but  invisible  boundaries. 

Dippinii  under  Adjoiuin*?  Claims. — Since  the 
dip  may  carry  a  lode  under  the  side-lines  of  an  adjoining 
claim,  the  right  to  follow  such  a  lode  must  indicate  either, 
1st— An  easement  to  which  the  adjoining  claim  is  subject, 
or  rather,  2nd — An  exception  out  of  the  estate  of  the  ad- 
joining claim.  The  maxim  that  ownership  extends  from 
the  surface  to  the  center  of  the  earth  in  vertical  lines,  in 
either  event,  therefore,  does  not  apply ;  the  claim  iu  its 
downward  course  is  governed  by  the  dip  of  the  veins  whoso 
apices  appear  at  the  surface  ;  it  extends  under  the  vertical 
side  lines  of  the  adjoining  claims  on  one  side,  and  on  the 
,  other  side  it  leaves  veins  pitching  under  its  own  side  lines 
as  the  property  of  him  who  is  their  owner  at  tiie  surface. — 
Iron  Silver  Co.  v.  Cheesman,  116  U.  S.,  530. 

It  has  been  decided  that  the  right  of  outside  veins  to 
follow  on  the  dip  underneath  a  patent  extends  only  to 
locations  made  prior  to  the  date  of  the  entry  of  such 
patent.— Pac(/ic  Coast  Co.  t>.  Spargo,  16  Fed.,  318;  8  Saio.,  015. 
But  this  decision  is  one  of  first  impression  and  not  authori- 
tative. 


1 04  DIP. 

The  Side  oi-  Auxiliary  Veins,  whose  apices  may 
be  within  the  side-lines  of  the  claim  or  patent  have 
the  same  right  to  the  dip  as  has  the  princiiial  or  discoveiy 
vein. — Jupiter  Co.  v.  Bodie  Co.,  -4  M.  R.,  412. 

Xo  Apex — No  Dip. — But  any  located  or  patented 
claim  which  has  been  so  unfortunately  surveyed  that  its 
vein  runs  practically  at  right  angles  to  the  sidelines,  cann 
claim  the  dip  beyond  its  side-lines. —  The  Flagstaff  case,  9 
M.  R.,  607  ;  McCormick  v.  Varnes,  Id.,  506 ;  Argentine  Co.  v. 
Terrible  Co.  122  U.  S.  478.  Or  if  the  side  line  run 
parallel  with  and  along  the  vein  so  as  not  to  cover 
the  entire  width  of  the  vein  the  same  result,  it  would  seem, 
ought  to  follow. — Seepage  94. 

The  end  lines  of  all  lode  claims  are  required  to  be  par- 
allel ;  and  where  the  lode  in  its  descent  reaches  the  end 
lines  protracted,  the  claim  ceases  and  the  dip  cannot  be  fol- 
lowed across  the  protraction  of  the  end  lines. — Richmond  Co. 
V.  Eureka  Co.,  9  if.  R.,  634. 

As  to  veins  uniting  on  the  dip,  see  page  90. 

The  Dip  in  Coal  3Iines  or  other  essentially  flat 
deposits  held  under  common  law  grants,  has  been  consid- 
ered important  only  upon  the  question  of  drainage,  but 
under  the  United  States  Mining  Acts  it  practically  deter- 
mines the  underground  limits  of  the  claim  in  the  case  of 
true  fissure  veins ;  and  in  the  case  of  deposits  it  is  under 
pretext  of  the  dip  that  the  locations  on  the  outcrop  have* 
attempted  to  maintain  their  claim  to  the  whole  bed,  ex- 
tended laterally  to  an  indefinite  extent. — See  Drainage 
page  lOS. 


WALLS.  105 

WALLS. 


Doftiinil.— In  a  contact  vein  the  roof  or  hanging  wall 
is  the  plane  of  the  contact  above  ;  the  floor  or  foot  wall  is 
the  plane  oi  the  contact  below.  la  fissure  veins  the  walls 
are  the  plane  of  demarcation  between  the  country  and  the 
gangue. 

Itelatiuii  lo  the  Conn  try  .—It  should  seem  almost 
self  evident  that  the  nature  of  the  wall  must  depend  upon 
the  nature  of  the  country  rock  and  the  nature  of  the  mate- 
rial which  it  encloses.  Between  certain  rocks  the  plane  of 
separation  would  be  distinct  and  traceable;  with  other 
rocks  a  dilTusion  of  the  oxides  and  minerals  of  the  enclosed 
material  through  the  adjoining  country,  would  obliterate 
more  or  less  all  trace  of  the  original  plane  of  division. 
Where  this  plane  of  division  is  manifest  to  the  eye  there  is 
what  miners  call  a  wall— where  it  h-is  become  obliterated 
they  say  there  is  no  wall.  It  is,  therefore,  manifest  that 
the  absence  of  one  or  both  walls  is  no  proof  of  the  non- 
existence of  a  vein,  they  being  a  mere  accidental  circum- 
stAuce.  And  it  has  been  so  decided  in  the  Lime  Lode  Case 
(116  U.  S..5.30)  and  in  the  Durant  Case  (29  Fed.  354).  In  the 
former  decision,  after  defining  what  constitutes  a  lode  as 
"a  body  of  mineral  or  mineral-bearing  rock  within  defined 
boundaries"  J;Iiller,  J.a'ids:  "In  the  existence  of  such  body 
and  to  the  extent  of  it,  boundaries  are  implied  ;"  and  in  the 
latter  case  this  language  is  used  by  Hallett,  .1.,  "It  is  true 
that  a  lode  must  have  bouudaries,  but  there  seems  to  be  no 
reason  for  saying  that  they  must  be  such  as  can  be  seen." 

Broken  Ground.— Natural  Cleavage— It  is  also 
evident  that  subsequent  disturbance  of  the  vein  matter 
would  tend  to  destroy  the  continuity  of  the  wall ;  and  in 
many  classes  of  rock  the  natural  cleavage  is  such  as  often 


1 06  WALLS-SPURS. 

to  be  mistaken  for  and  followed  as  a  wall.  In  such  ground 
a  very  little  manipulation  may  be  made  to  show  an  ap- 
parent wall  wlicrc  none,  in  fact,  exists. 

Disappearance  of  Wall. — It  is  nevertheless  true 
that  where  a  wall  has  shown  itself  for  some  distance  and 
disappears— this  is  an  important  item  to  be  considered 
where  the  further  continuity  of  the  vein  is  made  doubtful 
by  reason  of  the  simultaneous  disappearance  of  the  min- 
eral or  an  apparent  change  in  the  rock  which  is  being  fol- 
lowed.   See  page  34. 

Wall  or  Side  of  Working. — It  is  also  to  be  ob- 
served that  the  term  "wall"  is  often  used  with  reference 
to  the  actual  side  of  a  drift,  shaft  or  other  working  without 
reference  to  its  association  with  the  vein  :  and  finding  min- 
eral by  "cutting  through  the  wall"  is  spoken  of  as  if  it  im- 
plied no  contradiction  of  terms. 


SPURS. 


The  word  spurs  is  not  found  in  any  of  the  Acts  of  Con- 
gress nor  in  the  patents  issued  under  them.  It  is  a  danger- 
ous term,  because  it  has  no  definite  meaning.  That  which 
when  first  discovered  may  be  called  a  spur,  may  prove  to 
be  a  better  developed  vein  than  the  lode  from  which  it 
strikes  oflT. 

But  the  terra  found  its  way  into  the  Territorial  Act  of 
1866,  and  is  seen  in  most  records  ;  when  properly  applied  it 
signifies  a  feeder  to,  or  ofi-slioot  from,  a  lode.  As  such  it 
is  part  and  parcel  of  the  lode,  at  least  as  far  as  the  side 
lines  of  the  claim,  and  if  it  extended  much  further,  it  could 
hardly  be  called  a  spur. 


8PURS.-ANGLES  AND  VARIATIONS.  107 

A  spur  is  defined  (Biinbridgo  p.  2,  note)  as  "A  lateral 
branch  from  tlio  iniiii  lead,  not  returning  to  it  but  losing 
itself  in  the  sui-rounding  soil." 

A  discovery  shaft  upon  a  spur  ought  not  to  hold  against 
a  discovery  upon  a  lode,  bocausea  spur  properly  so  called, 
is  not  supposed  to  show  the  statutory  "well-defined  crevice." 

Ore  bodies  formed  oft  from  the  fissure  do  not  form  sepa- 
rate veins. —  Tombstone  M.  Co.  v.  Way  Up  Co.,  1  Ariz.  426. 


ANGLES  AND  VARIATIONS. 


Use  in  Statute.s  and  Conveyancing. — In  Section 
4,  A.  C,  186S,  the  words  "angles  and  variations"  were  used 
and  under  that  Act  a  lode  was  patented  with  its  "angles 
and  variations."  Thoy  are  neither  law  terms  nor  techni- 
cal mining  expressions,  but  are  supposed  to  cover  the  di- 
gressions of  a  lode  from  a  straight  line,  and  might  be  ex- 
tended to  "faults."  In  arguing  the  important  question 
arising  upon  patents  under  the  old  law  when  the  vein  left 
the  side  lines,  these  words  were  strongly  urged  as  indicating 
the  intention  to  pass  the  vein  as  the  essential  grant  of  the 
patent.  Their  use  in  records  and  conveyances  has  become 
a  mere  form. 

Irrr'fjular  Survey .s  with  Uiinenea.<!ary  Angles. — 

A  lode  may  and  should  be  surveyed  to  cover  all  its  angles. 
But  acute  angles  made  such  as  were  attempted  in  the  Stone 
Lode  leading  to  fantastic  figures  widely  different  fron^  the 
parallelogram  intended  in  the  act  of  Congress,  even  if  their 
end  lines  are  parallel,  run  great  rislc  of  being  ruled  out  of 
any  right  to  claim  beyond  their  side  lines.  In  other  re- 
spects they  may  be  wholly   valid  if  the  end   lines  are  reg- 


108  UllAINAGB. 

ular  and  the  statutory  width  and  Icagth  are  not  exceeded. 
Elgin  Co.  v.  Iron  Silver  Co.,  4  McCrary,  281 ;  118   U.  S.  200. 

Whether  the  presumption  allowed  in  ordinary  cases, 
{Armstrong  v.  Lower,  6  Colo.,  393,)  that  the  survey  covers 
the  vein  would  bo  indulged  to  a  claim  which  has  acute 
angles  may  be  doubted. 


DRAINAGE. 


LegislativP  ("oiitrol.— Sec.  3.  The  General  Assembly  may 
make  such  regulations,  from  time  to  time,  as  may  be  necessary 
for  the  proper  equitable  drainage  of  mines.— Oons^  Art.  XVI. 

Under  the  above  authorization  Sections  2416-2424,  of 
the  General  Statutes,  compiled  fi-om  Acts  of  1870  (p.  81) 
and  1872  (p.  154)  attempt  to  regulate  this  subject.  Such 
State  control  is  also  recognized  in  Sec.  2338  of  the  United 
States  Statutes. 

But  the  subject  itself  is  one  of  inherent  difficulty.  Tlie 
act  seeks  to  provide  that  where  one  mine  drains  another, 
the  mine  thus  benefited  shall  pay  its  proportion  of  the  cost 
of  drainage.  Where  a  tunnel  or  lower  adit  drains  another 
mine,  it  is  doubtful  whether  the  act  lias  any  application  as 
such  drainage  is  only  incidental.  Baird  v.  Williainson,  4  M. 
E.,  368/  Townsend  v.  Peasley,  2  31.  R.,  612.  Eut  where  one 
mine  hoists  the  water  of  another  a  natural  equity  is  more 
apparent,  and  Statutes  in  aid  of  contribution,  even  giving 
a  royalty  to  the  draining  mine,  have  been  enfoiccd.— Ahren 
V.  Dubuque  Co.,  H  M.  R.,  144. 

Coal  Miiiep. — Wherein  case  of  veins  or  deposits  of 
the  class  represented  by  coal  bsds,  one  mine  lies  under  the 
dip  of  another  mine  at  a  higher  level,  it  is  under  servitude 
to  the  water  How  of  the  mine  above. — Baird  v.  Williamsmi, 
sup.'tt. 


DITCHES  ANIJ   WATEU.  109 


DITIHES  AM)  WATER. 


Bighl  «r  Way.— G.  S.  ^  2;5*>7 —Whenever  any  person  or  per- 
sons a.e  engaged  "in  bringing  water  into  any  jjortion  of  tlie 
mines  they  shall  have  the  right  of  way  secured  to  them,  and 
may  pass  over  any  elaiin,  road,  ditch,  or  other  structure;  pro- 
Hdi-d,  the  water" be  guarded  so  as  not  to  interfere  with  prior 
rights. — i\o)>.  7,  1861. 

Congressional  Uceognition  of  Kiisoments.  -R.  S.,  §  2339. — 
Whenever,  by  jirioiily  of  posscs>i()n,  rights  to  the  use  of  water 
for  mining,  agricultural,  nianufucturing,  or  other  purposes,  have 
vested  and  accrued,  and  the  same  are  recogidzed  and  acknowl- 
edged by  the  local  customs,  laws,  and  the  decisions  of 
courts,  the  possessors  and  owners  of  such  vested  rights  shall  be 
maintained  and  i)rotected  in  the  same;  and  the  right  of  way  for 
the  constructiKU  of  ditches  and  canals  for  the  purposes  lierein 
specilicd  is  acknowledged  and  contirnied;  but  whenever  any 
person,  in  the  cnnstruction  of  any  ditch  or  canal,  injures  or 
damages  tlie  jiossession  of  any  settler  on  the  jiublic  domain,  the 
|iarty  committing  such  injury  or  damage  shall  be  Jiable  to  the 
party  injurt'd  for  such  injury  or  damage.— g 'J.  A.  C,  Julyli't,  LSIJC. 

Kxcp|»ti'il  ill  raleiir.— R.  S.,  g  2140.- All  patents  granted,  or 
pre-emption  or  homesteads  allowed,  shall  be  subject  to  any 
vested  and  accrued  water-rights,  or  rights  to  ditches  and  reser- 
voirs used  in  connection  with  such  water-rights,  as  may  have 
been  ae<iuired  under  or  recognized  by  the  preceding  section.— 
g  17.  A.  (;..  Jtdy'J,  lb7n. 

C!iiin)s  Siib,ject  to  ItitrhpK.  Flumes   and  TrKils--Parol   Li- 

cenHo.— (i.  S.  ((  2107.— All  niiniiig  claims  now  located  or  which 
may  be  hereafter  located,  shall  tie  subject  to  the  right  of  way  of 
any  ditch  or  Hume  for  mining  purpo.ses.  or  of  any  tramway  or 
pack  trail,  whether  now  in  use  or  which  may  be  hereafter  "laid 
out  across  any  such  location;  Hroridvd  always,  ihixl  such  right 
of  way  shall  not  be  exercised  against  any  location  duly  niade 
and  recorded,  and  not  abandoned  prior  to  the  establishment  of 
thcditch,  tlnme,  tramway  or  pack  trail,  without  consent  of  the 
owner,  except  by  condemnation,  as  in  case  of  land  taken  for 
juiblic  highways.  I'iirol  cun.senl  to  the  location  of  any  such 
ea-sement  accompanied  by  the  completion  of  the  same  over  the 
claim  shall  be  sullicient  without  writings;  And  pioviited  furlher . 
that  such  ditch  or  Hume  shall  be  .so  constructed  that  the  water 
from  such  ditch  or  Hume  shall  not  injure  veiled  rights  by  Hood- 
ing or  otherwi.se.— /*V'6.  i;;,  1.^7-1. 


1  1  0  DITCHES  AND  WATER. 

Parol  License  to  Construct.— Where  a  mining 
ditch  is  constructed  on  government  land  or  over  the  land 
of  the  owner,  or  of  persons  who  give  their  consent,  no  con- 
demnation proceedings  are  necessary  ;  the  ditch  once  con- 
structed becomes  a  lawful  easement  under  the  Statutes 
above  printed ;  or  the  consent  may  be  treated  as  giving 
title  by  estoppel. —  Yimker  v.  Nichols,  8  M.  R.,  64, 

Condemnation  where  Necessary. — Where  it  is 
to  be  built  across  claims  or  other  lands  whose  owners  refuse 
consent,  condemnation  proceedings  are  necessary  under 
the  Eminent  Domain  Act.  Const.  Art.  16.  Sec.  7.  Notwith- 
standing the  right  of  way  granted  to  ditches  by  the  Act  of 
1866  (R.  S.  2339)  a  ditch,  when  carried  across  mining  claims 
already  located,  must  recognize  their  prior  possessory 
rights  and  pay  damages  as  in  other  cases  of  condemnation. 
— Titcomb  v.  KirJc,  5  M.  R.,  10 ;  Jeimison  v.  Kirh,  4  M.  R.,  504; 
Noteware  v.  Sterns,  Id.  650. 

Buyer  Must  Take  Notrce  of. — A  ditch  is  a  phy- 
sical and  visible  monument,  and  doubtless  the  grantee  of 
land  crossed  by  a  ditch  buys  with  presumptive  notice  of  its 
existence. — Oregon  Co.  v.  Trullenger,  4  M.  R.,  247;  Lampman 
V.  Milks,  21  N.  Y.,  505. 

The  Rii;ht  of  the  Miner  to  Divert  AVater  from 
its  Natural  Stream,  in  opposition  to  the  common  law, 
has  been  not  only  granted  under  the  Act  of  Congress  of 
1866,  but  that  Act  has  been  construed  by  several  decisions 
of  the  Supremo  Court  of  the  United  States. — Atchison  v. 
Peterson,  1  M.  R.,  583 ;  Basey  v.  Gallagher,  Id.  683 ;  Jennison 
V.  Kirk,  i  M.  R.,  504. 

These  decisions  further  recognize  the  right  of  "appro- 
priation," as  it  is  called,  as  a  necessity  in  placer  mining 
districts.    The  party  who  first  appropriates  the  water  for 


DITCHES  AND  WATER.  11  1 

mining  purposes,  obtains  the  right  both  as  to  parties  who 
attempt  to  take  it  by  tapping  the  stream  above,  or  who 
need  it  in  the  stream  below. — Const.  Art.  16,  ^  7. 

Incidents  of  Water  Aijpropriatioii. — A  party 
cannot  loivato  a  ditch  in  sucli  a  m-innor  as  to  prevent  the 
practical  mining  by  hydraulic  power  or  otherwise,  of  claims 
which  it  crosses ;  nor  so  as  to  cut  off  the  water  used  by  the 
hydraulic.  When  ditch  crosses  ditch,  the  latter  claimant 
mu-st  adjust  the  crossings  so  as  not  to  interfere  with  the  full 
use  of  the  prior  ditch. — 4  M.  R.,  504. 

Where  a  party  has  appropriated  water  foi  the  purpose 
of  working  particular  mining  claims,  after  he  has  worked 
out  the  same  he  may  extend  his  ditch  and  work  other 
claims,  or  usethe  water  for  a  different  purpose,  without  losing 
his  priority  of  right,  even  against  a  party  who  had  dug  a 
ditch  and  appropriated  water  from  the  same  stream  before 
the  first  claims  were  washed  out — Davis  v.  Gale,  4  M.  E., 
604. 

A  party  may  use  the  bed  of  a  natural  stream  as  his 
means  of  conducting  water  added  to  it  by  a  ditch,  without 
being  considered  as  abandoning  the  water  by  mingling  it 
with  the  original  waters  of  the  stream. — Butte  Co.  v.  Vaughn, 
Id.  .55:3. 

The  change  of  locality  where  the  water  is  used  does 
not  forfeit  the  right. — Maeris  v.  Bicknell,!  M.  B.,  601. 

How  Conveyed. — Right  to  water  appropriated  may 
be  transferred  like  other  property.  A  ditch  is  real  estate 
and  is  conveyed  by  dQed.— Smith  v.  O'Uara,  1  M.B.,  671; 
Bradley  V.  Harkness,  11  M.  R.,  389. 

In  the  sale  of  a  mine  the  water  and  ditches  do  not 
pass  as  an  "api)urtcnance"  to  the  claim. — Quirk  v.  Falk, 
2  M.  R.,  19. 


112  DITCHES  AND   WATER. 

A  patent  does  not  divest  Ditch  Righta.— Dod^e  v.  Mar- 
den,  1  M.  R.,  G3. 

Relation. — When  a  ditch  is  made  for  the  appropria- 
tion of  water,  the  right  relates  back  to  the  commeaccment 
of  the  work  on  the  ditch,  if  the  same  be  completed  within 
a  reasonable  time.— Jfaeris  v.  Bicknell,  1  M.  li.  GOl. 

But  if  the  ditch  be  not  completed  with  due  diligence, 

the  right  only  accrues  from  the  time  the  water   is  actually- 
appropriated. —Oj^/tir  Co.  V.  Carpenter,  4  M.  R.  640. 

Liocatioii  of  Ditch  Right.— At  the  point  where  wa- 
ter is  taken  from  the  stream,  post  notice  as  follows : 

DITCH   NOTICE. 

Slidlaiid  Diteh.— I  claim  50  inches  of  the  water  of  this 
stream,  to  bo  taken  by  ditch  from  this  point  to  claims  on  Wight- 
man's  Gulch,  i  II  .S'MWi/ni^  Mining  District,  Jiio  Grande  County, 
for  miniug  purposes.  William  U.  Cocuuan. 

March  17,  1887. 

LOCATION  CERTIFICATE  OF  DITCH   AND  WATER    RIGHT 

To  ALL  Whom  These  Presents  may  Concern:— Know  ye 
that  I,  Wiliiam  II.  Cochran,  of  Del  Norte,  in  the  County  o  f 
Rio  Grande,  in  the  State  of  Colorado,  do  hereby  declare  and 
publish  as  a  legal  notice  to  all  the  world,  that  1  have  a  valid 
right  to  the  occupation,  po.ssession  and  enjoyment  of  all  and 
singular,  that  tract  or  parcel  of  land  lying  and  being  in  tsummit 
Mining  District,  in  the  County  of  Rio  Grande,  in  the  State  of 
Colorado,  for  ditch  and  mining  purposes,  bounded  and  described 
as  follows,  to- wit:— The  M"td;a/(c/ 7>t<c/i.-  Head  of  ditch  tapping 
the  waters  of  the /I  ^rtmo.sa /fit-er  at  a  point  indicated  l)y  notice 
there  posted  on  the  right  bank  about  one  mile  above  Summitville, 
100  yards  S.  W.  from  cabin  occupied  by  Jacob  Elli.'ion,  and  10 
feet  N.  E.from  tree  blazed  with  lelteis  "JI.  Z);"  course  of  ditch, 
thence,  etc.,  etc. 

I  also  claim  50  inches  of  the  waters  of  said  river,  to  be 
conveyed  by  such  ditch,  with  the  exclusive  right  of  way  for  said 
ditch;  together  with  all  and  singular,  the  hereditaments  and  ap- 
purtenances thereunto  belonging  or  in  anywise  appertaining. 
Witness  my  hand  and  .seal  this  11  th  da,y  of  March,  in  the  year 
eighteen  hundred  and  eighty-seven. 

WiLT.iAM  H.  Cochran,    [Seal.]_ 


DITCHES  AND   VVATKIl.  113 

State  op  Colorado,  | 

County  of  liio  Grande,  f "  ' 

Before  me  tlic  subscriber,  a  Notary  Public  in  and  for  said 
County,  persoiiiilly  appeared  Willam  H.  Cochran,  to  me  person- 
ally known  to  l)e  the  sume  person  described  in,  and  who  executed 
the  within  Declaration  of  Occui)ation,  and  acknowledged  that  he 
signed,  sealed  and  pul)lished  the  same  as  his  free  and  voluntary 
act  and  deed,  for  the  uses  and  purposes  therein  set  forth.  Witness 
my  hand  and  Notarial  Seal  this  17th  day  of  March,  A.  D.  18H7. 
[L.  S.]  CiiAS.  A.  BuASTow,  Notary  Pnblic. 

The  above  foriu  is  statutory,  G.  S.  ?  2678.  The  Section 
which  prescribes  the  form  adds  that  it  shall  be  subscribed 
with  the  "full  christian  and  surname"  of  the  party.  These 
"Declarations  of  Occupation"  are  the  ouly  instruments 
where  there  is  a  statutory  requirement  to  discard  initials, 
and  it  is  advisable  to  couforra  to  it,  although  it  is  doubtless 
merely  directory  on  this  point. 

The  ditch  should  be  staked  and  work  commenced  and 
prosecuted  with  reasonable  diligence.  If  the  notice  and 
record  be  not  followed  up  within  a  reasonable  time  by 
actual  work  in  carrj'ing  out  the  intended  appropriation 
they  amount  to  absolutely  nothing. 

It  is  always  advi.sable  to  record  a  water  claim  although 
n  ditch  actually  constructed  and  used  may  have  enforceable 
equities  without  record. 

Irri<;atioii  Ditches. — A  special  and  peculiar  form  of 
record  is  required  for  irrigation  ditches  (188.7,  page  315), 
and  the  whole  subje?.t  of  irrigation  has  become  clouded 
with  interminai)le  legislation;  to  such  an  extent  that  no 
step  in  regard  to  water  rights  can  be  taken  without  counsel- 

For    form    cf   incorporation    of    ditch    company    seo 

COKPOEATIONS. 


114  RIGHT  OF   WAY. 

RIGHT  OF  WAY.    KOADS,  THAILS  AND  OTHER 
EA!SKME>T1S. 


Hiiiilin;;  (Jii.irtz.— G.  S.  'i  'IZ'n  —Every  miner  shall  have  the 
right  of  way  across  any  and  ail  claims  for  the  jmrpose  of  hauling 
quartz  froni  his  claim.— iN'of.  7,  lcS61. 

State  Power  to  Re^'ulate  Kaseinents.— R.  S.  ?  2338.— As  a 
condition  of  sale,  in  the  absence  of  necessary  legishition  by  Con- 
gress, the  local  legislature  of  any  State  or  Territory  may  provide 
rules  for  working  mines,  involving  easements,  drainage,  and 
other  necessary  means  to  their  complete  development ;  and 
those  conditions  shall  be  fully  expressed  in  the  patent.— g  5.  A.  C. 
July  2G,  18C0. 

Hichways.— R.  S.  g  2477.— The  right  of  way  for  the  construc- 
tion of  highways  over  public  lands,  not  reserved  for  publie  uses, 
is  hereby  granted.— g  8.  ^4   C.  Jidy  20,  188G. 

How  Fstabli-shed. — A  trail  or  tramway  may  be  estab- 
lished by  consent  of  owner  over  located  or  patented  land 
without  deed  or  other  writings. — G.  S.  ^  2407     See  page  109. 

Or  such  au  easement  may  in  certain  cases  become  valid 
by  estoppel. —  Yunlcer  v.  Nichols,  8  M.  R.,  164. 

Over  the  unoccupied  public  domain,  roads  may  be 
established  without  any  license  or  formality,  under  the 
operation  of  the  above  section  of  the  Act  of  Congress  (2477) 
and  under  the  State  statute  all  locations  are  attempted 
to  be  made  subject  to  a  right  of  way  for  hauling  quartz. 

Whether  patented  or  only  taken  by  location,  a  public 
highway  or  other  easement  cannot,  against  the  consent  of 
the  owners,  be  laid  out,  except  after  condemnation  and 
payment  of  damages. — Titcomb  v.  Kirk,  5  M.  R.,  10. 

Not  Divested  by  Patent — A  mineral  patent  does 
not  divest  a  valid  highway  already  on  the  ground  when 
patent  was  applied  for. — Copp's  M.  L.,  89. 

And  when  construed  in  connection  with  the  Act  of 
Congress  and  the  power  of  the  State  to  regulate  easements 
it  would  iseem  that  the  patent  would  be  subject  to  any  valid 


DUMP.  1 1  5 

Bubsistinpc  caaRTncntaffectiDg  the  ground  prior  to  the  appli- 
cation. Sucli  an  casement  saves  itself  and  needs  not  to  be 
protected  by  filing  an  adverse  claim. — Rockwell  v.  Graham, 
10  Pac,  284 ;  9  Colo.  36. 


DUMP. 


IJight  to  Dump. — There  is  no  statute  on  the  subject 
of  dumping;  and  the  right  to  dump,  as  of  necessity  or  by 
custom,  across  lower  claims,  has  never  been  brought  under 
the  adjudication  of  the  Court  of  last  resort  in  any  of  the 
mining  States,  to  the  writer's  knowledge;  but  in  the  case 
of  Equator  Co.  v.  Marshall  Co.,  U.  S.  C.  Ct.,  an  action  brought 
to  restrain  the  dumping  across  a  claim  lying  below  on  the 
mountain  slope,  it  was  held,  as  of  course,  that  it  was  no  case 
for  injunction,  unless  where  work  was  being  prevented, 
shafts  filled,  life  endangered  or  other  gross  and  continuing 
injury,  and  the  remedy,  if  any,  was  to  be  enforced  by  action 
at  law. 

In  a  later  suit  in  the  same  Court  between  the  same 
parties  it  was  held  that  when  continuous  dumping  had  been 
carried  on  by  owners  and  lessees,  without  proof  or  attempt 
at  proof,  as  to  the  injury  done  by  each  party,  that  only 
nominal  damages  could  be  recovered  against  an  owner,  the 
owners  not  being  responsible  for  the  injuries  done  by  their 
lessees;  and  there  being  no  proof  that  the  defendant,  one 
of  the  owners,  had  ever  taken  an  active  part  in  the  manage- 
ment of  the  mine,  the  jury  found  for  the  defendant. — 
Little  Schnijlkill  Co.  v.  Richards,  10  M.  R.,  661. 

In  the  case  of  careless  or  wanton  injury  to  improve- 
ments the  upper  claim  is  of  course  liable;  but  the  right  to 
dump  over  unimproved  and  valueless  surface  ground  is 


I  I  6  PLACERS. 

doubtless  such  an   easement  as  may   be  allowed  by  State 
statute  (R.  S.  ?  2338)  or  proved  as  a  District  custom. 

A  Dump  is  Heal  Kstate  and  passes  to  the  grantee 
without  special  mention.  But  a  contract  to  sell  the  ore 
found  in  it  need  not  necessarily  be  by  deed. — Smart  v.  Jones, 
15  Cum.  Bench,  N.  S.,  717. 


PLACERS. 


Open  to  l.ociilion  and  Patent.— R.  S.  g  2:3211.— Claims  usually 
called  "placers,"  including  all  forms  of  deposit,  excepting  veins 
of  quartz,  or  other  roclc  in  place,  shall  be  subject  to  entry  and 
patent,  under  like  circumstances  and  conditions,  and  upon  simi- 
lar proceedings,  as  are  provided  for  vein  or  lode  claims ;  but 
where  the  lands  have  been  previously  surveyed  by  the  United 
States,  the  entry  in  its  exterior  limits  shall  conform  to  the  legal 
subdivisions  of  the  i)UbUc  lands.— ^  12.  ..-l.  C.  July  'J,  1870.. 

Size  of  Cliiini.— R.  S.  §  2330.— Legal  subdivisions  of  forty 
acres  may  be  subdivided  into  ten-acre  tracts ;  and  two  or  more 
persons,  or  associations  of  persons,  having  contiguous  claims  of 
any  size,  although  such  claims  may  be  less  than  ten  acres  each, 
may  make  joint  entry  thereof;  but  no  location  of  a  placer  claim 
made  after  the  ninth  day  of  July,  eighteen  hundred  and  seventy, 
shall  exceed  one  hundred  and  sixty  acres  for  any  one  person  or 
association  of  persons,  which  location  shall  conform  to  the 
United  States  survey.s  ;  and  nothing  in  tnis  section  contained 
shall  defeat  or  impair  any  bona-fide  pre-emption  or  homestead 
claim  upon  agricultural  lands,  or  authorize  the  sale  of  the  im- 
provements of  any  bona-fide  settler  to  any  purchaser.— ./Z>iti. 

Twenty  AcFPS  to  One  Locator.— R.  S.  ?  2o.31.— Where  placer- 
claims  are  upon  surveyed  lands,  and  conform  to  legal  subdivis- 
ions,no  further  survey  "or  jHat  shall  be  required,  and  all  placer-min- 
ing claims  located  after  the  tentli  day  of  May,  eighteen  hundred 
and  seventv-two,  .shall  conform  as  near  is  practicable  with  the 
United  States  system  of  public-land  surveys,  and  the  rectangular 
subdivisions  of  such  s\irveys,  and  no  such  location  shall  include 
more  than  twenty  acres  for  each  individual  claimant ;  but  where 
placer-claims  cannot  be  conformed  to  legal  subdivisions,  survey 
and  plat  shall  be  made  as  on  unsurvej'ed  lands  ;  and  where  by 
the  segregation  of  mineral  land  in  any  legal  subdivision  a  quan- 
tity of  agricultural  land  less  than  forty  acres  remains,  such  frac- 
tional portion  of  agricultural  land  may  be  entered  by  any  party 
qualified  by  law.  for  homestead  or  pre-emption  purposes.-^  10. 
A.  O.  Mai/iO,  1872. 


PLACE  RK.  117 

Location  nnd  Iioratinn  Cerlillcali'.  — Notici'  nnd  StakeR. — G. 

S.  gi23K'j. — The  discoverer  of  ii  placer  elaini  shnll,  within  thirty 
days  from  Iho  date  of  discovery,  record  his  chiim  in  the 
office  of  the  Uccordcr  of  the  county  in  wliicii  said  claim  is  situ- 
ated, by  a  Location  Certificate,  wiiich  shall  contain:  First,  the 
name  of  the  claim,  designating  it  as  a  jilacer  claim  ;  second,  the 
name  of  the  locator  ;  third,  the  date  of  location  ;  fourth,  the  num- 
ber of  acres  or  feet  claimed,  and  fifth,  a  description  of  the  claim, 
by  such  reference  to  natural  objects  or  permanent  monuments 
as  shall  identify  the  claim. 

Before  tiling  such  location  certificate  the  discoverer  shall 
locate  his  claim  :  First,  by  posting  upon  such  claim  a  plain  sign 
or  notice,  containing  the  name  of  the  claim,  the  name  of  the 
locator,  the  date  of  discovery,  and  the  number  of  acres  or  feet 
claimed  ;  second,  by  marking  the  surface  boundaries  with  sub- 
stantial posts,  and  sunk  into  the  ground,  to-wit :  one  at  each  an- 
gle of  the  claim.  * 

♦Note.— liiled  with  Secretary  of  State,  March  12,  1879,  and 
came  a  law  under  Sec.  11,  Art  4,  State  Const. 

Ijeais'atlon  (."oiicerniiij:'  filacers. — Placer  claims 
were  not  covered  by  the  original  Mining  Act  of  18G6. 

The  Act  of  1870  brought  them  within  congressional 
recognition  and  made  them  open  to  patent. 

There  was  no  Colorado  statute  applying  specially  to 
this  class  of  claims  prior  to  1879;  they  have  been  at  all 
times  regulated  as  to  size,  labor,  mode  of  location,  etc.,  by 
the  District  Rules  to  a  much  greater  extent  than  lode 
claims. 

What  Consritiiios  ii  Pl.acpr. —  As  commonly  and 
properly  understood  a  liacer  claim  means  a  location  in 
which  gold  is  found  loose  in  the  debris  and  not  in  the  vein 
or  in  place:  it  includes  gulch  claims,  cement  diggings,  old 
channels,  drift  diggings,  etc.,  but  the  Land  Office  construc- 
tion of  the  U.  S.  Mining  Acts  is  to  the  effect  that  any  de- 
posit of  any  kind  of  recognized  mineral,  which  is  not 
in  place  is  intended  by  the  law  to  be  a  placer,  and  may  he 
located  and  patented  as  such.  They  ruled  that  salines 
were  placers  {Copp  M.  L.  321);  subsequently  made  a  dis- 
tinction that  deposits  of  salt  could  be  located,   but   not  salt 


J  I  8  PLACERS. 

springs ;  {Id.  321,  324)  and  finally  held  that  no  form  of  salt 
land  could  be  entered  as  a  placer. — (13  L.  0.  53).  Borax 
beds  have  been  specially  held  patentable  as  placers, 
and  the  general  instructions  direct  that  soda,  sulphur, 
alum  and  asphaltum    may  be  so    treated. — (9  L.  0.  210.) 

Oil. — Quarries. — Oil  land  may  be  located  and  patented 
as  a  placer,  (9  L.  0.  51 ;  10  /..  0.  307).  A  deposit  of  building 
stone,  that  is  to  say,  a  Quarry,  is  a  Placer  as  the  Laud 
Office  construes  the  law  (11  L.  0.  213) ;  also  kaolin  or  fire 
clay,  (9  L.  0.  165 ;  10  L.  0.  83.) 

Size  of  Claim  that  maybe  Tjocatetl. — The  amount 
of  ground  which  may  be  located  is  limited  to  20  acres  to  each 
individual  or  person ;  of  course  a  corporation  is  one  person 
without  reference  to  the  number  of  its  incorporators ;  an 
association  of  persons  may  lo;ate  a  claim  in  common  not 
exceeding  20  acres  to  each  individual  in  the  association, 
and  not  exceeding  ICO  acres  to  the  entire  association.  It 
requires  8  bona  fide  locators  to  lawfully  claim  160  acres. 
The  names  of  nominal  parties  are  often  used  to  locate  placer 
ground  and  such  nominal  association  is  not  questioned  in 
land  office  proceedings,  but  its  validity  may  well  be  doubted 
when  contested  in  court. 

Size  of  Claim  that  may   be   Patented.— In  the 

case  of  Smelling  Co.  v.  Kemp,  11  M.  R.,  673,  followed  by 
Tucker  v.  Maaser,  113  TJ.  S.,  203,  the  Supreme  Court  of  the 
United  States  decided  that  there  is  no  limit  to  the  number 
of  placer  locations  which  may  be  united  in  one  claim  and 
patented  upon  one  application.  Such  practice  has  been  fol- 
lowed by  the  Land  Office  so  that  any  number  of  contiguous 
acres  made  up  of  several  160-acre  locations  may  be  patented 
as  one  claim.  The  Supreme  Court  state  in  their  opinion 
that  there   is  a  distinction   between   a  "location"  and  a 


I'LACEIIS.  I  I  9 

"claim:"  that  where  sundry  locations  have  been  made 
and  conveyed  to  one  purchaser  they  become  not  his 
"claims"  but  his  "chiiin."  TJiis  first  decision  having  been 
followed  as  a  settled  point  in  the  subsequent  case,  the  rea- 
son for  the  decision,  however  unsatisfactory,  becomes  im- 
material. 

No  liimitation  to  Placer  Kiitry— "Claim"  and 
"Local  ion." — In  direct  opposition  to  all  precedent  policy 
with  regard  to  the  disposition  of  thG,public  lands,  but  ap- 
parently consistent  with  the  forced  construction  given  to 
tko  word  ''claim"  in  the  above  cited  cases,  the  Land  Office 
holds  not  only  that  a  placer  claim  may  consist  of  any 
number  of  adjoining  locations,  but  that  the  $500  improve- 
ments required  by  law  means  so  much  improvements  on 
such  entire  claim  and  need  not  be  found  on  each  location 
or  on  each  160  acres. — (12  L.  0. 288 ;  Inre  Good  Return  M.  Co.,' 
Id.  214.)  There  is  nothing  to  i)revi'nt  the  patenting  in  one 
application  on  .ioOO  expenditure  of  as  much  placer  ground  as 
an  applicant  can  afford  to  i)ay  for  at  the  government 
price.— (7  L.  0.,  4).  The  abuses  possible  under  this  holding 
are  manifest. 

Conformation  to  U.S.  Sectional  Sulclivisions. 

— The  Act  speaks  of  making  survey  for  the  placer  claim 
conform  as  near  as  possible  with  the  rectangular  subdivi- 
sions of  the  public  lands,  but  under  the  practice  this  pro- 
vision has  been  almost  wholly  disregarded,  except  on 
subdivided  sections. — 10  L.  0.,  338. 

Area  in  Feet  oi-  Acres. — By  the  following  table 
the  number  of  feet  necessary  to  include  any  desired  number 
of  acres  when  in  the  shape  of  a  square  or  parallelogram 
may  be  ascertained.  ^ 


1 20  PLACERS. 

Claim      660  x  330  feet    contains  5  acres. 

500x500  "  "         5.73  " 

"  6G0  X  660  '•  "       10  " 

1320  X  660  "  "       20  " 

"  800  X  1089  "  "       20  " 

933\  X  933^  '•  "       20  " 

1320  X  1320  "  "       40  "       • 

2610  X  2640  "  "160 

43560  square  feet  equal  1  acre.     A  square  208.71*  feet 
n  length  and  width  makes  one  acre. 

I'lacei-s,  h«w  Ijooaced.— The  State  Act  of  1879 
brings  placer  claims  substantially  to  the  same  status  as  lode 
claims  as  to  mode  of  location,  but  only  thirty  days  are 
allowed  in  which  to  complete  the  location  and  make  the 
record. 

Of  course  no  discovery  shaft  is  required,  but  the  statute 
implies  that  mineral  shall  have  been  found  before  the  right 
to  locate  upon  tlie  same  as  a  placer  claim  accrues. 

The  i)rocedure  in  the  location  of  a  placer  claim  is  as 
follows : 

Presuming  that  free  gold  or  some  other  valuable  de- 
posit is  known  to  exist  on  the  ground,  the  claimant,  if  he 
desires  the  benefit  of  the  30  days  allowed  to  the  discoverer, 
should  place  a  notice  conspicuously  as  follows : 

FORM   OF   PRELIMINARY   NOTICE. 

Nellie  Moore  Placer  Claim. 
The  undersigned  claims  20  acres  for  placer  mining  purposes 
with  30  days  from  date  to  complete  location  and  record.    June 
9,  1886.  William  Sabine. 

We  do  not  consider  that  the  above  notice  is  essential  in 
all  cases,  but  it  is  customary.  If  the  claimant  was  the 
actual  first  discoverer  of  the  mineral  it  might  not  be  re- 
quired ;  but  if  the  existence  of  the  gold  or  other  deposit 
had  been  a  matter  of  common  notoriety  we  do  not  see  why 
one  person  more  than  another  could  claim  the  time  ia- 
tended  for  a  discoverft-  without  some  such  notice. 


PLACERS.  I  r  | 

Proceeding  to  complete  tlio  location  the  claimant  must 
post  upon  the  claim  the  statutory  notice  (paj/e  117)  which 
may  be  in  form  as  follows  : 

FORM   OF   LOCATION    NOTICE. 

Nellie  Moore  Placer  Claim. 
The  undersigned  claims  JO  acrex  for  placer  mining  pur- 
poses, as  staked  on  this  ground.    Date  of  discovery,  June  'J,  188C. 

William  Sahine. 

SECOND    FORM. 

Nellie  Moore  FUicer  Claim. 

The  undersigned  claims  13J0  feet  in  length  along  the  gulch 
by  660  feet  in  breadth,  for  placer  mining  purjioses,  as  staked  on 
this  ground.    Discovered  Jm/.c  9, 188C.  William  Sabine. 

Name. —  Dates. — The  statute  requires  the  claim  to  be 
named,  although  snch  had  not  been  theretofore  the  general 
custom.  It  will  be  noted  tliat  the  notice  on  the  stake  must 
contain  the  date  of  cZiscower^/,  while  the  record  must  contain 
the  date  of  locatiofi. 

Stakes  and  Ties — The  locator  then  stakes  his  claim 
placing  a  "substantial  post,"  "sunk  into  the  ground"  at  each 
angle  of  the  claim.  No  center  stakes  are  required.  Ac- 
curacy and  strictness  in  fixing  and  marking  the  boundaries 
cannot  be  too  severely  urged.  Of  course  some  of  the 
angles  must  be  tied  to  "natural  objects"  or  "permanent 
monuments"  in.  order  to  make  a  proper  location  certificate 
or  record  according  to  the  terms  of  the  statute.  We  advise 
the  same  as  in  ca.se  of  lode  claim.     [See  page  46.] 

Record. — The  notice  being  erected  and  the  ground 
surveyed  and  staked,  the  location  is  complete  and  ready  for 
record',  the  location  certificate  being  in  form  as  follows  : 

FORM  OF  PLACER  LOCATION  CERTIFICATE. 

Know  all  Mk.n  uv  Thkse  Presknts.  that  I.  WiUinm  Sabine, 
of  the  County  of  Conejos,  State  of  Col"rado,  claim,  by  right  of 
discovery  and  location,  the  NeUin  MiX)re  placer  claim,  containing 


1 22  PLACERS. 


twenty  acres  (or  1320  foet  in  length  by  660  feet  In  width),  situate 
in  Confijos  Mining  District,  County  of  Comjos,  State  of  CoU/rado, 
bounded  and  describert  as  follows,  towit :— Bcsinning  at  stake 
at  corner  No.  1,  etc.;  (Mre  i/iseri  description,  ginin.g  a  beannq  to 
each  /ine,  and  tying  one  or  more  corners  to  a  gnveritment  corner, 
tvell-known  natural  object  or  permanerit  monunurd,  etc.)  Date  or 
Location,  June  9, 1886.    Date  of  Certificate,  June  10, 1886. 

William  Sabine. 


riACER  CONTAINING  LODE. 


Claim  Intcrsccteil  by  Lorle.-R.  S.  §2.333.— Where  the  same 
person,  association,  or  corporation  is  in  possession  of  a  placer- 
claim,  and  also  a  vein  or  lode  included  within  the  boundaries 
thereof,  application  shall  be  made  for  a  patent  for  the  placer- 
claim,  with  the  .statement  that  it  includes  such  vein  or  lode,  and 
in  such  case  a  patent  shall  issue  for  the  placer-claim,  subject  to 
the  provisions  of  this  chapter,  including  such  vein  or  Inde,  upon 
the  payment  of  five  dollars  per  acre  for  such  vein  or  lode  claim, 
and  twenty-five  feet  of  surface  on  each  side  thereof.  The  re- 
mainder of  the  placer-claim,  or  any  placer-claim  not  embracing 
any  vein  or  lode-claim,  shall  be  paid  for  at  the  rate  of  t  \vo  doUara 
and  fifty  cents  per  acre,  togetlier  with  all  costs  of  proceedings ; 
and  where  a  vein  or  lode,  such  as  is  described  in  section  twenty- 
three  hundred  and  twenty,  is  known  to  exist  within  the  bound- 
aries of  a  placer-claim,  an  application  for  a  patent  for  such 
placer-claim  which  does  not  include  an  application  for  the  vein 
or  lode-claim  shall  be  construed  as  a  conclusive  declaration  that 
the  claimant  of  the  placer-claim  has  no  right  of  possession  of  the 
vein  or  lode  claim  ;  but  where  the  existence  of  a  vein  or  lode  in 
a  placer-claim  is  not  known,  a  patent  for  the  placer-claim  shall 
convey  all  valuable  mineral  and  other  deposits  within  the 
bouudaries  thereof.— Sec.  11.  May  10,  1872. 

Known  Lodes  Excluded. — An  application  for  pa- 
tent to  a  placer  claim  is  not  supposed  to  include  any  known 
lodo  running  througli  it,  unless  such  lode  is  owned  by  tbe 
applicant  and  especially  designated  in  the  application,  but 
it  covers  any  after-discovered  lode. 

A  placer  and  lode  claim  not  contiguous,  the  lode  not 
being  within  the  lines  of  the  placer,  cannot  be  embraced  in 
the  same  application  for  patent. — G  L.  0. 102. 


PLACERS.  123 

What  are  Known  Lodes. — Where  a  lode  within 
the  placer  lines  has  been  discovered,  located  and  recorded, 
and  has  kept  itfl  hibor  up  to  the  time  of  the  phiccr  applica- 
tion, it  is  clear  that  such  is  a  "kuowu  lode"  beyond  any 
possible  danger  of  construction. 

But  where  lod(  s,  tliough  known,  have  not  been  consid- 
ered worth  locating,  or  after  location  have  been  abandoned, 
or  where  they  have  been  known  as  matter  of  common 
knowledge  to  be  within  the  lines,  as  in  the  case  of  outcrops 
not  known  to  be  worth  working — these  points  admit  of 
more  or  less  controversy. 

In  the  case  of  Reynolds  v.  The  Iron  Silver  M.  Co.,  116  U.  S., 
C87,  the  Court  ruled  that  the  lode  in  or  underlying  the 
Wells  &  Moyer  Placer  being  shown  to  be  known  to  the 
applicants,  could  not  be  recovered  by  them  in  ejectment  as 
against  adjoining  lode  owners  who  had  worked  beyond 
their  side  liiu  s  iiilo  the  deposit. 


ANNUAL  LABOR  ON  PLACERS. 


Void  Attempted  Stat^  Rejruiation  of  AnnnnI  Labor.— G.  S. 
g  23SC.— On  each  phu'cr  claim  of  one  hundred  and  sixty  acres  or 
more,  hcrotot'ore  or  hereafter  located,  and  until  a  patent  has  been 
issued  therefor,  not  less  than  one  hundred  dollars'  worth  of 
labor  shall  be  performed  or  improvements  made  by  the  first  day 
of  August,  lb"'.',  and  by  the  first  day  of  August  of  each  year  there- 
after. On  all  placer  claims  containing  less  than  one  hundred 
and  sixty  acres,  the  expenditure  during  each  year  shall  be  such 
proportion  of  one  hundred  didlarsasthe  number  of  acres  bears 
to  one  lumdred  and  sixty.  On  all  placer  claims  containing  less 
than  twenty  acres,  the  expenditure  during  each  year  shall  not  bo 
less  than  twelve  dollars  ;  but  when  two  or  more  claims  lie  con- 
tiguous, and  are  owned  by  the  same  person,  the  expenditure 
hereby  required  for  each  claim  may  be  made  on  any  one  claim  ; 
and  upon  a  failure  to  comply  with  these  conditions,  the  claim  or 
elnims  upon  which  such  failure  occurred  shall  be  open  to  relo- 
cation in  the  same  manner  as  if  no  location  of  the  same  had  ever 
been  made:  i^rcwtried,  that  the  original  locators,their,heirs,  assigns. 


I  24  ANNUAL    liAnOR   ON    PLACERS. 

or  legal  representatives,  have  not  resumed  work  upon  the  claim 
after  failure  aud  before  such  location:  Provided,  the  aforesaid 
expenditures  maybe  made  in  building  or  repairing  ditches  to 
eonduct  water  upon  sucli  ground,  or  in  making  other  mining 
improvements  neocssary  for  the  working  of  such  claim.— Sec.  2, 
Mar.  12,  1879. 

Forfeiture  by  Co-Owner  in  Plaocr.— Upon  the  failure  of  any 
one  of  several  co-owners  to  contribute  his  proportion  of  the  ex- 
penditures required  hereby,  the  co-owners  who  have  performed 
the  labor  or  made  the  improvements  may.  at  tlie  expiration  of 
the  year,  to-wit :  the  first  of  August,  lcS79,  for  the  locations  here- 
tofore made,  and  one  year  from  the  date  of  locations  hereafter 
made,  give  such  delinquent  co-owner  personal  notice  in  writing, 
or,  if  he  be  a  non-resident  of  the  State,  a  notice  by  publication  in 
the  newspaper  published  nearest  the  claim,  for  at  least  once  a 
V,  eek  for  ninety  days,  and  mailing  him  a  copy  of  such  newspaper, 
if  his  address  be  known,  and  if,  at  the  expn-ation  of  ninety  days 
after  such  notice  in  writing,  or  after  the  first  publication  of  such 
notice,  such  delinquent  should  fail  or  refuse  to  contribute  his 
proportionof  the  expenditure  required  by  this  section,  his  inter- 
est in  the  claim  shall  become  the  property  of  his  co-owners  who 
have  made  the  required  expenditures.— Id. 

The  above  section  2386,  so  far  as  it  fixes  a  time  for  annual 
labor  on  placer  claims  dilTercut  from  that  supposed   to  be 
fixed  by  the  Congressional   law,  has  been  declared  inopera 
tive. — Sweet  v.  Wehher,  7  Col.  450. 

It  would  seem  to  be  superfluous  also  in  its  declaration 
as  to  what  annual  labor  consists  of. 

Forfeidn-e. — The  above  printed  section  having  been 
declared  invalid  as  to  the  amount  of  labor  on  placers  wou'd 
seem  to  be  equally  so  in  its  atteript  to  change  the  Con- 
gressional act  as  to  time  in  which  to  efiect  forfeiture. 

It  also  fixes  a  special  and  different  period  for  the  an- 
nual labor  ;  and  a  special  and  different  time  for  its  notice 
to  go  into  effect.  All  its  main  provisions  being  thus  invalid) 
it  is  doubtful  whether  any  part  of  the  section  remains  of 
any  force  whatever. 

The  forms  of  affidavit,  notice  and  proof  of  forfeiture 
given  for  lode  claims  (p;  04-68)  will  apply  with  obvious 
alterations  to  placers. 


TAILINGS.  125 

Jiidicinl  Rulings  as  to  Ijabor  on  Placers. — The 

<liie^tion  of  annual  labor  on  placers  is  a  curious  instance  of 
the  growth  of  law  by  following  the  first  judicial  oversight 
as  a  precedent  until  the  wrong  intcirpretation  is  firmly 
rooted  as  the  true  one.  By  no  fair  construction  of  the  act 
of  1872  could  it  be  applied  to  anything  except  lode  claims. 
The  very  amount  of  the  labor  was  fixed  by  the  nnniber  of 
feet  "in  length  along  the  vein."  But,  in  1876,  in  Chapman 
V.  Toy  Long,  1  M.  R.,  497,  placers  were  referred  to  incident- 
ally as  subject  to  the  labor  law.  In  Jackson  v.  Roby,  109  U. 
Fi.  410,  without  argument,  the  same  dictum  was  made.  Later, 
in  Carney  v.  Arizona  Co.,  65  Cal,  40,  the  point  was  definitely 
made  as  to  whether  such  labor  was  required  on  placers,  and 
the  Supreme  Court  of  California,  in  a  very  weak  argument 
sustain  the  aflir.'native  of  the  proposition.  In  Sweet  v.  Web- 
ber, 7  Colo.,  443,  the  precedents  thus  established  were  fol- 
lowed without  anv  reference  to  the  original  statute. 


TAILINGS. 


Karli  Claim  Musi  Take  Onro  of  It«  Own.— G.  8.  ?  2393.— In  no 
case  shall  any  persf)n  or  per.sons  be  allowed  to  flood  the  property 
of  another  person  with  water,  or  wash  down  the  tailings  of  his  or 
their  Rlui('e  upon  the  claim  or  i>roperty  of  other  persons,  but  it 
shall  be  the  duty  of  every  miner  to  take  care  of  his  own  tailings, 
upon  his  own  property,  or  become  responsible  for  all  damages 
that  may  arise  therefrom.—^  9.  Nov.  7,  1861. 

The  relation  of  one  claim  to  another  where  both  are 
situate  in  the  same  gulch  or  on  the  same  water-flow  is 
sought  to  be  regulated  by  the  above  section  jiassed  in  1861, 
which  fixes  in  terms  a  matter  of  long  continued  dispute  in 
California.  The  two  early  cases  in  the  California  Reports, 
E.imond  v.  Chew.o  M.  /J.  175  and  Log<in  v.  DriscoU.  ''Id.  172  are 


126  TAILINGS. 

inconsistent  with  each  other  and  are  severely  reviewed  in  a 
strouE;  opinion  in  the  case  of  Lincoln  v.RocJgers,  1  Mont,  247 
14  M.  B. 

Injunctive  Helief  Against  Deposit  Of. — Notwith- 
standing the  above  Act  the  subject  is  apt  to  be  more  or  less 
involved  with  questions  of  license,  contract  and  estoppel,  as 
such  a  statute  coiald  not  possibly  be  carried  into  effect.  No 
placer  claim  can  be  mined  without  encroaching  more  or  less 
upon  the  claims  beloiV.  There  is  nothing  in  the  Act  to  pre- 
vent the  location  of  ground  for  the  special  object  of  a  dump 
for  tailings,  but  if  this  has  not  been  done  and  the  ground 
below  has  been  taken  up  by  other  parties,  the  statute  is 
plain  that  the  upper  cannot  lawfully  use  the  lower  claim  as 
a  place  of  deposit.  To  do  so  would  be  an  invasion  of  the 
legal  rights  of  the  lower  claimant  for  which  he  might 
recover  damages,  but  it  does  not  follow  that  in  every  case 
the  courts  would  interfere  to  restrain  the  upper  claimant  by 
injunction. 

And  if  the  lower  claims  could  be  shown  to  have  been 
located  or  purchased  for  any  purpose  of  annoyance  to  the 
upper  claims  the  Avant  of  equity  in  such  case  upon  an 
application  for  injunction  would  be  manifest. — Edwards  v. 
Allouez  Mining  Co  ,7  M.  B.,  577. 

The  incidental  flow  of  mud  and  fine  tailings  not  suffi- 
cient to  accumulate  as  deposit,  but  affecting  only  the  char- 
acter of  the  water  or  causing  but  slight  damage,  if  an  injury 
at  all,  is  not  such  as  to  be  interfered  with  by  injunction. — 
Atchison  v.  Peterson,  1  M.  B.,  583. 

Location  of  Taiiings  Claim. — A  party  may  take 
up  a  claim  for  mining  purposes  which  has  been  and  still  is 
used  as  a  place  of  deposit  for  tailings  by  another — but  ia 
snch  case  his  mining  right  would  be  subservient  to  the 
prior  right  of  deposit. — O'Keiffe  v.  Cunningham,  9  M.  B.  451. 


TAILINGS.  127 

Properly  In. — Vacant  land  upon  which  tailings  havo 
been  deposited  may  be  claimed  and  worked  the  same  as 
land  containing  natural  deposits,  and  trespass  maintained 
by  the  claimant  against  a  party  carrying  away  such  tailings. 
— Rogers  v.  Cooney,  14  M.  B. 

When  tailings  are  allowed  to  flow  upon  the  land  of 
another  he  is  entitled  to  them. — Jones  v.  Jackson,  14  M.  R. 

Tailings  are  property  of  the  miner  who  made  them,  so 
long  as  not  abandoned  and  retained  on  his  own  land  or 
under  his  control. — Id. 

For  the  rulings  enjoining  Hydraulic  raining  under  the 
plea  of  stopping  the  filling  up  of  the  river  beds  and  destruc- 
tion of  the  meadow  lands,  in  what  arc  known  as  the  Debris 
cases,  SCO   Woodruff  v.  N.  Bloomfield  Co.,  13  Fed.  753;  27  Id. 
795;  Hardt  v.  Liberty  Hill  Co.,  27  Fed.  783;  Golden  Gate  Co.  v. 
Superior  Court,  65  Cal.  187;  Peo.  v.  Gold  Run  Co.,  66  Cal.  133; 
Hobbs  V.  Amador  Co.,  Id.  IGl.   The  evil  from  which  relief  was 
sought  in  these  cases  was  doubtless  great,  and  their  general 
result  may  have  been  right.     But  certain  incidents  in  their 
progress  detract  from  their  force   as  a  final  adjudication 
upon    propi'.r  principles  and  by  due  process  of  law.     They 
are  candidly  styled  by  Sawyer,  J.,  "a  suit  between  the  min- 
ing counties  and  valley  counties."     (18  Fed.  792.)     Tliat  an 
injunction  against  flowing  tailings  was  not  an  injunction 
suspending  "the  general  and   ordinary  business"   of  the 
Hydraulic  Company,  and  could,  therefore,  bo  granted  ex 
parte,  without  regard  to  the  statute  prohibiting  injunctions 
of  such  effect  without  notice,  is  an  instance  of  special  plead- 
ing too  obvious  to  be  justified.     (65  Cal.  189;  66  Id.  314.) 
The  continued  prevention  of  mining  after  defendants  had 
built  their  impounding  dam,  (27  Fed.  788)  extending  the 
inhibition  to  drift  mining  (27  Fed.  795),  and  the  imposition 


128  MILL   SITES. 

of  heavy  fines  paid  over  to  complainant's  solicitors  (Id.) 
Bhow  the  dangerous  limits  to  wbich  judicial  power  may  be 
extended. 


MILL  SITES. 


Extent.  How  Patented.— R.  S.  g  2337.— Where  non-mineral 
land  not  contiguous  to  the  vein  or  lode  is  used  or  occupied  by  the 
proprietor  of  such  vein  or  lode  for  mining  or  milling  purposes, 
such  non-adjacent  surface  ground  may  be  embraced  and  included 
in  an  appllication  for  a  patent  for  such  vein  or  lode,  and  the 
same  may  be  jjatented  therewith,  subject  to  the  same  preliminary 
requirements  as  to  survey  and  notice  as  are  applicable  to  veins 
or  lodes ;  but  no  location  hereafter  made  of  such  non-adjacent 
land  shall  exceed  five  acres,  and  payment  for  the  same  must  be 
made  at  the  same  rate  as  fixed  by  this  chapter  for  the  superficies 
of  the  lode.  The  owner  of  a  quartz-mill  or  reduction-works,  not 
owning  a  mine  in  connection  therewith,  may  also  receive  a 
patent  for  his  mill-site,  as  provided  in  this  section.— g  15  A.  V.  May 
10,  1872. 

Location  Of. — Mill  sites  are  located  by  staking,  and 

recorded  according  to  the  forna  given  in  Section  2678  of  the 

General  Statutes. 

LOCATION  CERTIFICATE  OF  MILL  SITE. 

To  ALL  Whom  These  Presents  May  Concern  :  Know  ye  that 
I,  Richard  J.  Malone,  of  the  City  and  County  of  Larwaxter,  Com- 
monwealth of  Pe>2»).sy?«a?2!a,  do  hereby  declare  and  publish  as  a 
legal  notice  to  all  the  world  that  I  have  a  valid  right  to  the  occu- 
pation, possession  and  enjoyment  of  all  and  .singular  that  tract 
or  parcel  of  land  not  exceeding  five  acres,  situate,  lying  and  being 
in  Crystal  Hill  Mining  District,  in  the  County  oi  Saguache,  in  the 
State'of  Colorado,  bounded  and  described  as  follows,  to-wit :  The 
Buckhorn  mill  site,  Beginninf/  at  corner  No.  1  from  v)hich,etc., 
(description  continued)  to  the  place  of  beginning,  together  with 
all  and  singular  the  hereditaments  and  appurtenances  thereunto 
belonging  or  in  anvwise  appertaining.  Witness  my  hand  and 
seal  this  22d  day  of  September  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  eighty -seven. 

Richard  J.  Malone.       [Seal.] 

For  form  of  acknowldument  seepage  113. 
A  name  is  not  essential  to  a  mill  site,  but  it  is  conve- 
nient and  preferable  to  style  it  by  a  name. 


MILL   SITES.  129 

Post  Location  Notice  on  claim  similar  to  form  on  page 
121.  Location  and  record  should  be  accompanied  or  fol- 
lowed by  substantial  occupancy  or  valid  improvements. 

By  the  U.  S.  liiiw  lli^y  are  liiuitod  to  five  acres, 

but  by  the  district  regulations  were  sometimes  restricted  to 
much  less  extent. 

Tliov  caiinoi  lawfully  be  located  on  mineral 
land  (4  L.  0.  3)  and  if  so  located  may  be  contested  by 
proceedings  in  the  Laud  Office. — 5  L.  0.  51. 

And  a  mill  site  adjoining  the  end  line  of  a  lode  claim 
being  presumed  to  contain  the  extension  of  the  vein,  will 
be  considered  as  mineral  land,  and  its  entry  as  a  mill  site 
will  not  be  allowed  ;  if  a  mill  site  abut  against  a  side  line, 
the  same  presumption  does  not  exist,  and  its  entry  may  be 
permitted.— J»/o«/e  MuUhi  Mill  Site,  7  L.  0.  4. 

But  the  presumption  that  land  on  which  a  lode  claim 
end  liueabut.^,  is  necessarily  mineral,  may  be  rebutted  by 
proof.— 7  L.  0.  179;  8  Id.  188. 

Two  Classe.s  of  Mill  Sites.- The  latter  clause  of 
Sec.  2337  sitpra,  provides  for  patenting  of  land  actually  occu- 
pied by  a  mill,  but  the  former  and  more  iuiportaut  poition 
of  the  section  provides  a  means  of  procuring  surface  area  to 
cover  such  ground  as  may  be  used  in  any  manner  incidental 
to  the  mine.  The  $300  improvements  on  the  lode  are 
sufficient  to  enter  both  lode  and  mill  site,  if  the  mill  site  is 
used  or  occupied  by  the  applicant  for  mining  or  milling  pur- 
poses. 

Proofof  Improvements.— The  early  practice  of  the 
Land  Oflice  was  to  patent  a  mill  site  when  applied  for  in 
connection  with  a  lode,  without  proof  of  either  use  or  im- 
provements. This  practice  was  taken  advantage  of  to  pat- 
ent building  lots,  and  all  sorts  of  claims  as  mill  sites,  but 
5 


130         MINING  UNDER  SUKFACE  IMPROVEMENTS. 

the  Department  now  requires  proof  uot  ouly  that  it  is  non- 
mineral  land,  but  that  it  is  used  for  milling  purposes  or  in 
connection  with  the  mine,  as  for  instance,  for  dumping  pur- 
poses or  as  holding  the  plant  or  surface  appurtenances  of  a 
mine.  The  cabins,  boarding  houses,  etc.,  always  necessary 
in  operating  a  mine,  are  a  sufficient  mining  use  under  this 
ruling. 

This  proof  of  the  use  of  the  site  in  connection  with  the 
mine  is  by  affidavit  of  the  applicant  and  of  two  disinterested 
witnesses.  Intention  to  use  is  not  sufficient.  Li  re  Ontario 
S.  M.  Co.,  13  L.  0.  159. 

When  patent  is  applied  for  upon  a  mill  site  alone  it 
seems  clear  under  the  Act  that  it  is  confined  to  instances 
where  a  mill  or  reduction  works  actually  exist  upon  the 
ground,  or  are  in  course  of  construction. 

Adverse  and  Protest. — When  a  mill  site  application 
conflicts  with  a  prior  claim  of  another  to  the  ground  for 
like  purposes  it  may  be  adversed  ;  or  it  may  adverse  or  bo 
adversed  by  a  lode  or  placer,  or  where  in  conflict  with  a 
mineral  claim  it  may  be  defeated  by  a  protest  and  proof  of 
being  located  on  mineral  land. — 9  L.  0.  71. 


MINING  UNDER  SURFACE  IMPROYEMENTS. 


G.  S.  ?  2.'?88.— No  person  shall  have  the  right  to  mine  under 
any  building  or  other  improvement  unless  he  shall  first  secure 
the  parties  owning  the  same  against  all  damages,  except  by 
priority  of  right.— Nov.  7,  1861. 

G.  S.  'i  2108.— When  the  right  to  mine  is  in  any  case  separate 
from  the  ownership  or  right  of  occupancy  to  the  surface,  the 
owner  or  rightful  occupant  of  the  surface  may  demand  satisfac- 
tory security  from  the  miner,  and  if  it  be  refused  may  enjoin  such 
miner  from  working  until  such  security  is  given.  The  order  for 
injunction  shall  fix  the  amount  of  bond.— g  13.    Feb.  13, 1874. 


SEVKRANCE.  13  1 

A  miner  has  no  right  to  work  within  the  enclosure  sur- 
roandinf;  a  dweUint;  house  corral  and  other  improvements 
of  aaotlier. — Burdf/ev.  ruderwood.  4  M.  R.  (>1S. 


SETERINCE. 


Separation  of  Surface  ami  3Iineral  Estate. — The 

ownership  of  the  minerals  may  ho  vested  in  one  while  the 
owuershij)  of  tho  surface  is  in  another.  This  severance  is 
often  created  by  deed,  in  which  case  it  amounts  practically 
to  a  partition  on  a  horizontal  plane,  the  two  estates  being 
entirely  separated,  except  that  from  the  nature  of  the  case, 
the  surface  owner  can  usually  claim  the  right  of  support 
while  the  mine  owner  can  claim  such  incidental  use  of  the 
surface  as  is  necessary  to  enable  him  to  win  the  minerals. — 
Caldwell  v.  Fulton,  3  if.  R.  -^oS ;  Wonier  v.  Watson  14  M.  R.  21 
Amer.  R.  55;  Marvin  v.  Brewster  Co.  13  M.  R.  40 ;  14  Amer.  R. 
322. 

But  tho  subject  is  important  in  the  Western  States 
chiefly  with  reference  to  the  question  of  whether  claims 
located  on  government  land  and  claims  patented  by  the 
government  take  both  surface  and  minerals  in  all  cases,  or 
whether  in  any  case  there  is  an  actual  or  implied  severance 
of  the  minerals  from  the  surfoce,  either  from  the  nature  of 
the  claim  or  from  the  language  of  patents  confirming  the 
claim. 

Pateiit«;ti  Claims  Generally.— As  to  patented  Claims 
it  has  been  the  policj'  of  the  government  to  grant  the  entire 
estate,  and  retain  no  interest  with  the  Patentee.  It  has 
been  so  held  in  the  case  of  a  Mexican  Grant  confirmed  by 
Patent,  altliough  under  the  original  grant  the  claimant 
had  received  no  title  to  the  mines  of  gold  and  silver  from 
the  Mexican  Government.    It  was  considered  that  the  con- 


132  SEVERANCE. 

firmatory  patent  of  the  United  States  conveyed  the  soil, 
and  everything  under  the  soil,  and  that  if  the  Government 
had  intended  to  reserve  the  royal  metals,  as  the  Mexican 
Eepublic  had  done,  it  should  have  been  so  expressly  stated 
in  the  patent. — Moore  v.  Sniaw,  12  M.  R.  418. 

Patented  Lode  Claims. — As  the  Patents  to  Lode 
Claims  contain  no  reservations  which  would  indicate  a  sever- 
ance, therefore  none  exists,  and  we  do  not  know  that  the 
contrary  has  ever  been  claimed. 

Patented  Placer-^. — As  t»  Placer  Claim  Patents,  they 
convey  not  only  the  placer  deposits  and  the  surface,  but 
also  all  veins  except  those  known  to  exist  when  the  patent 
issued  which  are  especially  excepted. 

Patented  3Iill-Siies. — As  to  Mill-Site  Patents,  it  is 
required  that  such  claims  be  located  on  non-mineral  land. 
But  they  contain  under  the  form  now  in  use  a  reservation 
saving  to  the  proprietor  of  any  vein  or  lode  the  right  to 
enter  for  the  purpose  of  extracting  the  ore  should  such  vein 
or  lode  "penetrate,  intersect,  pass  through  or  dip  into  the 
premises  hereby  granted."  This,  beyond  question,  gives 
the  right  to  follow  a  lode  under  them  on  the  dip ;  but  no 
reservation  greater  than  this  seems  to  be  authorized  by  the 
Act  of  Congress  ;  a  valid  lode  claim  overlying  the  ground 
could  have  protected  its  rights  by  an  adverse ;  and  the 
question  remains  singularly  open  as  to  whether  or  not  a 
mill  site  supposed  at  the  time  of  entry  to  be  non-mineral 
conveys  such  veins  as  may  be  found  to  go  tlirough  it  on  the 
strike — with  general  rales  of  construction  in  favor  of  the 
proposition  that  it  carries  them. 

Patented  A.sricHltural  Claims. — As  to  Patented 
Agricultural  Claims  obtained  in  good  faith,  not  at  the  time 
of  entry  known  to  be  mineral  land,  minerals  afterwards  dis- 
covered certainly  belong   to  the  Patentee  ;  but  where  land 


SEVEUANCE.  133 

has  been  entered  as  flgriciiltural  u])on  wliich  mineral  loca- 
tions existed,  in  dufiauce  of  the  rijihtsof  mineral  claimants, 
such  patents  could  be  set  aside  as  against  the  mineral  claim- 
ants ;  and  it  was  held  in  the  case  of  Gold  Hill  Co.  v.  Ish,  11 
M.  R.  03."),  that  such  a  Patent  was  absolutely  void  as  to  the 
land  covered  by  the  mining  claim. 

A  patent,  however,  howsoever  procured,  usually  oper- 
ates to  pass  title,  and  in  such  case  the  holder  should  be  de- 
clared a  trustee  for  the  use  of  the  owner  of  the  mine.  See 
p.  81.     Salmon  v.  S;/mond.i,  30  Cal.  302. 

School  Ijnncls. — School  Sections  Ki  and  36,  known  to 
contain  minerals  at  the  time  of  the  admission  of  Colorado 
as  a  State,  ( August  1,  1876)   under  the  Act  for  admission 
approved  March  3,  IST.l,  did  not  pass  to  the  State. — 6  L.  0. 
152  ;  4  L.  0.  GO ;  6  L.  0.  43. 

Where  such  mineral  character  was  discovered  prior  to 
survey  they  remained  the  pronerty  of  the  United  States, 
and  claims  may  be  located  upon  them. — 5  L.  0.  178;  Hey- 
denfeldt  v.  Daney  Co.,  13  M.  R.  201.  Put  where  their  min- 
eral character  has  been  discovered  since  the  date  of  admis- 
sion aforesaid,  and  since  the  time  they  were  surveyed,  they 
have  become  the  property  of  the  State  and  are  controlled  by 
the  Act  of  the  last  session. — Acts  of  18S7,  page  328.  By  Act 
approved  April  2,  1834,  (L.  0. 29)  the  State  is  reimbursed  for 
school  sections  lost  to  the  State  by  reason  of  their  mineral 
character. 

Pateiitod  I  own  Sites. — In  this  case  there  is  an  ex- 
press severance  of  the  minerals.  The  holder  of  the  lot 
takes  no  title  to  any  located  claims.  Tlie  lot  is  subject  to 
entry  to  get  the  mines  of  gold  or  silver  which  it  may  con- 
tain.--K.  S.  i  2386,  2392. 

The  surface  and  the  subjacent  strata  are  rarely  owned 
by  separate   parties,  in  this  State,  except  where   gold   has 


134  SEVERANCE. 

been  discovered  in  towns  entered  under  the  Town  Site 
Acts.  The  Town  Patent,  where  valid  mining  locations  have 
been  made  on  such  discoveries,  does  not  grant  the  minerals, 
and  the  ground  is  open  to  location  as  mining  claims,  subject 
to  the  right  of  the  surface  proprietor.  If  the  mine  waslocatcd 
after  the  occupation  by  the  lot-owner  of  the  surface,  but  be- 
fore the  entry  of  the  town  site  for  patent,  the  mines  and  sur- 
face are  then  separate  estates,  each  to  be  enjoyed  under  the 
various  ap])licatioi]s  of  the  maxim:  "sic  utere  tuo  ut  alienum 
non  laedas.'''-llie  Smoke  House  Lode  Case,  12  Fac.  858.  King  v 
Thomas,  Id.  865. 

Uiipatentetl  CJaiins. — Alodcclaim  covers  the  entire 
surface  as  well  as  the  veins  within  it.  Before  the  passage 
of  the  Mining  Acts  it  had  been  held  {Brown  v.  49  Co.,  9  Jlf. 
J2.  600)  that  a  lode  location  also  included  float  gold  below 
its  apex  which  had  evidently  come  from  that  particular 
vein.  It  is  evident  from  the  Congressional  grant  of  the 
surface  without  excepting  any  form  of  deposit  that  a  lode 
location  made  in  good  faith  upon  an  ore-producing  vein, 
without  the  aid  of  any  such  decision  would  include  placer 
deposits  within  its  lines  both  above  and  below  the  vein. 

Bui  an  unpatented  placer  claim  covers  no  lodes,  and  a 
lode  claim  may  be  located  across  it.  An  unpatented  mill- 
site,  town  site  or  ranch  claim,  does  not  include  either  veins 
or  deposits  of  gold  or  silver. 


TUNNEL  SITES. 


Rpcord.— G.  S.  ?  23S0.— If  any  person  or  persons  shall  locate  a 
tunnel  claim  for  the  purpose  of  discovery,  he  shall  record  the 
same,  specifying  the  place  of  commencement  and  termination 
thereof,  with  the  names  of  the  parties  interefetcd  therein.— JVw.  7 
1801.  ' 


TUNNEL   SITE.  135 

2.")0.Fool  Trovision.  Kiffht  of  Wnj  to  Tunnel  — Ci.  8.  52:«)0.— 
Any  person  or  persons  engaiiod  in  workiiif;  ii  tnniicl,  within  the 
jiroVisions  of  this  chapter,  shall  bo  entitled  to  two  Imndred  and 
fifty  feet  cnch  way  from  said  tunnel,  on  each  lode  so  discovered  ; 
Provided,  they  do  not  interfere  with  any  vested  rights. 

Tf  it  shall  appear  that  claims  have  been  staked  off  and  re- 
corded prior  to  the  record  of  said  tnimel,  on  the  line  thereof,  so 
that  the  reqtiircd  ntnnber  of  feet  cannot  be  taken  near  said  tun- 
nel, they  may  be  taken  upon  any  part  thereof  where  the  same 
may  be  "found  vacant;  and  persons  working  said  tunnel  shall 
have  the  right  of  way  through  all  lodes  which  may  lie  in  its 
course.— Ibid. 

IJne  of  Tnnnel.    Xogloct  to  Work  for  Six   Moiillis.— R.  S.  ? 

232.'>.— Where  a  funnel  is  run  for  the  development  of  a  vein  or 
lode,  or  for  the  discovery  of  mines,  the  owners  of  such  tunnel 
shall  have  the  right  of  possession  of  all  veins  or  lodes  within  three 
thousand  feel  from  the  face  of  such  tunnel  on  the  line  thereof, 
not  previously  known  to  exist,  discovered  in  such  tunnel,  to  the 
same  extent  as  if  discovered  from  the  surface;  and  locations  on 
(he  line  of  such  tunnel  of  veins  or  lodes  not  appearing  on  the  sur- 
face, made  by  other  parties  after  the  commencement  of  the  tun- 
nel, and  while  the  same  is  being  prosecuted  with  reasonable  dili- 
gence, shall  be  invalid  ;  but  failure  to  prosecute  the  work  on  the 
tunnel  for  six  months  shall  be  considered  as  an  abandonment  of 
the  right  to  all  undiscovered  veins  on  the  line  of  such  tunnel. — 
g  4  A.  0.  May  10,  J872. 

Inoperative  State  Tunnel  L/aw. — A  section  similar 
to  Section  2.390,  above  printed,  was  found  in  the  Territorial 
Corporation  Law,  but  was  repealed  when  the  present  Cor- 
poration Law  was  adopted  ;  it  gave  250  feet  on  each  side  of 
the  tunnel  to  all  territorial  corporations  organized  for  tun- 
nel purpose. 

Wo  regard  this  Section  2390  as  inoperative,  if  not 
wholly  obsolete,  except  as  to  the  grant  of  a  right  of  way  in 
its  last  three  lines.  It  was  passed  in  1861,  long  before  any 
Congressional  attempt  to  regulate  the  subject,  and  could  not 
now  be  practically  enforced. 

Liine  of  Tiinnel. — The  principal  contention  on  the 
Tunnel  Law  of  Congress  has  always  been  as  to  the  extent  of 
the  line  of  the  tunnel  therein  mentioned.  The  Land  Office, 
as  early  as  1872,  ruled  that  it  included  only  "the  width 


136  TUNNEL    SITE. 

thereof  and  no  more."  (5  L.  0.  130.)  The  point  arose  in 
the  case  of  The  Corning  Tunnel  Co.  v.  Pell,  in  Boulder  County, 
and  has  been  decided  by  the  Supreme  Court.— 4  Colo.,  517. 
14  M.  R. 

They  adopted  the  Land  Office  construction.  The  facta 
in  the  case  were  as  follows:  The  Slide  Lode  applied  for 
patent,  and  was  adversed  by  the  Corning  Tunnel  Co. 
The  Slide  Lode  had  been  discovered  after  the  location  of 
the  Tunnel  Site,  and  while  it  was  being  diligently  prose- 
cuted in  front  of  the  tunnel,  but  not  on  its  line,  as  above 
defined ;  it  had  not  been  cut  in  the  tunnel  at  the  time  of  suit 
brought.  But  the  Court  based  its  decision  upon  a  full  con- 
struction of  the  Act,  construing  the  same  upon  both  its 
language  and  the  general  scope  of  the  Mining  Acts. 

That  such  would  be  the  final  construction  of  the  Act 
had  already  been  generally  acquiesced  in  by  the  profession. 
The  result  is  that  as  to  the  lodes  not  already  cut  by  the 
tunnel,  tunnel  sites  hold  practically  no  claim  whatever 
under  the  Congressional  Act. 

liOfles  cut  ill  a  tunnel  must  be  staked  and  recorded 
exactly  as  in  the  case  of  lodes  discovei'ed  at  the  surface,  ex- 
cept that  no  discovery  shaft  is  required — the  discovery  in 
the  tunnel  taking  its  place — and  the  location  stake  should  bo 
set  on  the  surface  at  a  point  midway  between  side  lines  and 
above  the  discovery  in  the  tunnel.  Such  location  notice 
should  state  tlie  fact  that  the  lode  was  discovered  in  the 
tunnel  and  the  number  of  feet  in  from  the  mouth.  In  fix- 
ing the  surface  line  approximate  calculations  should  be 
made  for  the  dip.  There  have  been  no  adjudications  that  we 
know  of  upon  the  exact  form  of  tunnel  locations,  but  atten- 
tion to  these  suggestions  would  certainly  make  a  valid  tun- 
nel 'ode  location. 


TUNNEL   SITE.  .137 

Li<icuiii>ii  of  Tunnel  Si  to. — Any  party  riinuiiig  a  tun- 
nel would  jirobably  hold  the  tuuuel  itself  ().  e.,  the  bore  as  far 
as  actually  ruu),  without  any  record  whatever,  (8  L.  0.  71.) 
This  is  done  every  day  in  the  ca.se  of  cross-cuts,  which  are 
simply  tunnels  on  a  small  scale.  But  to  claim  any  rights 
for  its  line  or  otherwise  under  the  Act  of  Congress  it  should 
be  staked  and  recorded.  Of  course,  a  lode  discovered  in  a 
tunnel,  after  the  lode  has  been  duly  located  and  recorded 
on  tile  tunnel  discovery,  is  as  valid  ui)on  an  unrecorded  as  up- 
on a  recorded  tunnel — its  title  having  by  such  independent 
location  become  a  matter  wholly  aitart  from  the  tunnel 
location.  A  party  has  no  right  without  license  to  start  a 
tunnel  within  the  lines  of  a  claim  belonging  to  another. 

LOC.VTIOX   CERTIFICATE   OF   TUKNEL. 

To  ALL  Whom  These  Presents  May  Concern  :  Know  ye  that 
I,  Vanxar  E  SMlbrand,  ofthe  County  of  Pueblo,  State  of  Colorado, 
do  hereby  declare  and  publish  as  a  losral  notice  to  all  the  world 
that  1  have  a  valid  riijht  to  the  occupation,  possession  and  enjoy- 
ment of  the  CV'torow Tunnel  and  Tunnel  Site,  situate  in  Foiaom 
Mining  District,  County  of  Garfield,  State  of  Colorado,  described  as 
follows,  to-wit :  Month  of  tiunicl  situate  on  the  Eastern  slope  of 
fianc/elfj  Jlountain,  (tix  tunnel  moutli  by  metes,  course  and  di-!- 
tance) ;  course  of  tunnel,  north  20  degrees,  cast  3,000  feet,  lineal 
and  horizontal  measurement  to  stake  set  at  end  of  course. 
And  I  claim  for  line  of  timnel  a  width  of  four  feet  on  each  side 
ofthe  center  line  of  said  course,  and  the  right  to  all  lodes  which 
may  be  discovered  in  the  due  prosecutioa  of  said  tunnel  within 
7jo"foetof  each  side  ofthe  center  of  said  line.  I  also  claim  a 
square  tract  of  land  iiO  feet  on  each  side  ofthe  mouth  of  tunnel 
and  lying  immediately  below  the  mouth  of  tunnel,  as  staked 
upon  the  ground  for  dumping  ymrposes. 

Witness  my  hand  and  seal  this  eleventh  day  of  .January,  A.  D. 

18S8.  VaSS-VR  E.  STOLLBKANn. 

For  form  of  acknowledgment  see  page  113. 

TUNNEL  NOTICE.  (To  beposUd  at  the  moulh.) 

Tho  Onlorow  Tunnel,  located  January  11.  188S,  by  V^issar  E- 
Stollbrand;  course,  north  20  degrees  east,  ;i,000  feet ;  dinnp,  500 
feet  square,  as  staked.  Vassau  K.  SToLLintANo. 


138  TUNNEL  SITE. 

AbancUmnicni . — A  tunnel  may,  like  any  other  kind 
*f  claim,  be  abandoned ;  but  neglect  to  work  does  not  oper- 
ate to  effect  an  abaudonmcut ;  such  neglect  only  operates  to 
deprive  it  of  tunnel  rights  along  its  line.  (5  L.  0.  34.)  The 
fact  that  no  labor  has  been  done  for  many  years  is 
evidence  of  abandonment,  but  not  conclusive.  As  before 
stated,  (page  51)  abandonment  is  a  question  of  fact,  and 
in  the  case  of  tunnels  is  wholly  independent  of  the  annual 
labor. 

Patent.  Adverse  Claims. — There  is  no  provision 
of  law  for  patenting  a  tunnel  site.  But  it  may  maintain  an 
adverse  clairu  for  the  protection  of  its  line  and  tunnel 
rights.  (8  L.  0.  88 ;  173.)  A  lode  located  on  a  tunnel  dis- 
co fery  adverses  of  course  on  its  own  merits  as  a  lode  loca- 
tion. 

The  L;ind  Office,  in  the  decision  above  cited,  held  that 
a  tunnel  must  adverse  to  protect  its  tunnel  rights  ;  but  we 
appreheud  that  a  patent  granted  across  the  line  of  a  tunnel 
would  not  affect  the  rights  of  such  tunnel  so  far  at  least  as 
its  easement  or  right  of  passage,  which  is  its  principal  prac- 
tical value,  is  concerned.  But  it  is  safer  to  either  adverse 
or  procure  a  deed  from  the  applicant  for  the  right  or  terri- 
tory clouded  by  the  application. 

Annual  Labor  by  Tunnel--That  Section  two  thousand  three 
hundred  and  twenty-four  of  the  Revised  Statutes  be,  and  the 
same  is  hereby,  amended  so  that  where  a  person  or  company  lias 
or  may  run  a  tunnel  for  the  purposes  of  developing  a  lode  ,or  lodes 
owned  by  said  person  or  company,  the  money  so  expended  in 
said  tunnel  shall  be  taken  and  considered  as  expended  on  said 
lode  or  lodes,  whether  located  prior  to  or  since  the  passage  of 
said  Act ;  and  such  person  or  company  shall  not  be  required  to 
perform  work  on  the  surface  of  said  lode  or  lodes  in  order  to 
hold  the  same  as  required  by  said  Act.— g  1 .  Feb.  11, 1875. 

Tlie  annual  labor  of  .$103  on  each  claim  may  be  per- 
formed under  the  above  section  by  work  done  on  a  tunnel, 
cutting,  or  which  is  driven  to  cut,  such  claims. — 2  L.  0.  39 ; 
5  L.  0.5;  Id.  34. 


TAXATION.  139 

The  Patent  Expenditures  of  S'jOO  may  also  bcmado 
on  such  tunnel.  (-1  L.  0-  G7.)  A  party  may  patent  one  lode 
on  tho  hue  of  his  tunnel  for  each  ioOO  of  labor  spent  in 
driving  tho  tunnel. 


TAXATION. 


FULL  TKXT  OF  ACT  OF  1887. 

Minos  Pprlnrcd  Taxiihle.— Sec.  1.  All  mines  and  mining  prop- 
erty of  the  class  heretororc  exempted  by  the  Constitution  of  the 
State  ot  Colorado,  shall  hereafter  be  assessed  and  taxed,  and  the 
taxes  levied  enforced  by  sale  ofthc  property  taxed,  in  default  of 
payment,  in  the  same  manner  as  is  now  or  may  be  provided  by 
law,  in  the  case  of  other  classesoftaxablc  real  estate. 

Description.— Sec.  2.  The  number  of  the  survey  lot  or  the 
name  of  the  lode  or  claim,  and  the  name  of  the  mining  district, 
shall  be  sufficient  description  for  purposes  of  taxation  and  assess- 
ment of  mining  property. 

Basis  of  Assossnimt.— Sec.  3.  All  mines  and  mining  claims, 
and  possessory  rights  therein,  producing  mineral  during  the  year, 
exceeding  in  vahie  the  sum  of  one  thousand  dollars  (SI, 000),  shall 
be  asses.sed  by  the  as;-essor  for  the  purposes  of  taxation  and  reve- 
nue, as  follows,  viz.:  Theasscssor  shall  compute  and  ascertain 
the  gross  proceeds  in  dollars  and  cents  derived  from  the  mine 
and  miniiig  claim,  to  be  valued  during  the  preceding  fiscal  year  ; 
Hieh  mine  or  mining  claim  shall  be  valued  for  revcinie  purposes 
at  a  sum  not  exceeding  one  (il'th  of  the  sum  thus  ascertained, 
and  said  mine  or  mining  claim  shall  be  assessed  an<l  taxed  ac- 
cordingly ;  and  if  such  gross  proceeds  are  derived  from  a  group 
of  several  mines  or  mining  claims  contiguous  to  each  other, 
owned  or  held  by  the  same  person,  company  or  corporation, 
then  such  ascertained  sum  shall  be  eciually  divided  among  and 
prorated  to  each  of  such  claims,  and  they  shall  be  valued  and 
taxed  accordingly. 

I'ossossory  Claims  Not  Exompt.— Sec.  4.  In  case  the  mine  or 
mining  claim  shall  not  l)e  patented,  or  entered  for  a  patent,  but 
shall  1)0  assessable  and  taxable  under  this  act,  on  account  of  pro- 
ducing gross  proceeds,  tlicn.  and  in  that  case,  the  possession  shall 
be  the  subject  of  the  asses.-ment,  and  if  said  mining  property  be 
sold  f<ir  taxes  levied,  the  sale  for  such  taxes  shall  pass  the  title 
and  right  of  possession  to  the  purchaser,  under  the  laws  of  Colo- 
rado. 


140  TAXATION. 

(iork  fo  Obt.iin  List  of  Patentpd  Lots. — Sec.  5.  It  shall  be 
the  tluty  of  the  County  Clerk  of  each  County  to  obtain  a  list  of 
all  mineral  survey  lots,  patented  or  entered  lor  patent,  or  the 
name  and  locality  of  all  productive  possessory  claims  in  his 
County,  on  or  l)eforc  the  first  day  of  May  In  each  year.  He 
shall  be  allowed  by  the  County  Commissioners  his  outlays  neces- 
sarily expended  in"  obtaining  the  same.  Such  list  shall  be  used 
by  the  assessor  to  aid  in  listing  any  claims  not  already  listed  by 
the  owners.— ^p/^roued  April  4, 1887.    Session  Laws  p.  340. 

Mine  Tax  Prior  to  the  Above  Act. — Under  the 
Territory,  improvements  on  all  claims  were  taxed  and  the 
claim  itself  when  it  had  been  patented. 

The  State  was  admitted  August  1st,  1876,  with  a  Con- 
stitution which  (Art.  X  ^  3)  exempted  mines  from  all  tax 
except  on  proceeds,  for  ten  years.  During  this  period  which 
expired  just  prior  to  the  last  session  of  the  legislature,  the 
improvements  were  still  taxed,  but  an  attempt  to  collect  a 
tax  on  the  proceeds  was  held  invalid  ou  the  ground  that  the 
Statute  was  not  sufficiently  specific— S^an^e^  v.  Little  Pitts 
burg  Co.  6  Colo.  415. 

The  Act  Xow  in  Force.— The  new  act  did  not  go  in- 
to effect  in  time  to  allow  of  an  assessment  for  1337.  Under 
its  provisions  the  mine  itself,  whether  patented  or  other- 
wise, will  be  assessed  but  the  assessment  will  be  based  on  its 
product.  The  basis  of  valuation  (not  to  exceed  one-fifth 
the  gross  mill  returns)  is  not  an  unfair  one.  No  means  of 
ascertaining  it  are  given  by  private  inquisition  but  if  the 
owner  refuse  information  on  this  point  he  would  weaken 
his  own  position  on  any  attempt  to  cut  down  the  assess- 
ment.—^ree^e  V.Haley,  13  Pac.  913. 

The  Supreme  Court  of  the  United  States  has  decided 
that  unpatented  claims  are  t'dxahle.— Forbes  v.  Gracey,  94 
U.S.  762;  UM.R. 


LIENS  141 


LIKNS. 


How  4  fTecto.I  by  Patent.— R.  S.  g  2  332.***  Nothing  in  this  chap- 
ter .shall  be  (iccmcd  to  impair  any  lion  which  may  have 
attached  in  any  way  %vhatever  to  any  mining-claim  or  r>roperty 
thereto  attached  prior  to  the  issuance  of  a  patent. — g  13  A.  C. 
July  U,  1870. 

Patent  althoagh  relieving  claims  from  adverse  rights, 
does  not  relieve  from  liens  already  attached  against  the 
property.  On  the  otlier  hand,  the  patented  title  enures  to 
the  benefit  of  the  lien  holder. —Copp.  83. 

Judgments  are  liens  for  six  years  from  date  of  entry 
where  the  Transcript  of  Judgment  has  been  duly  filed. — 
Code,  j/  232.  But  execution  should  issue  within  one  year. 
G.  S.  ^  1S35. 

A  mining  partner  in  certain  cases  seems  to  have  a  lien 
for  his  advances  in  excess  of  those  of  a  co-partner. — Duryea 
V.  Burt,  11  M.  R.  395. 

See  Mixer's  Liex  :  Exa.mination  of  Title. 


MIXER.S'  LIEN. 


In  What  Oases  Allowpd— ScTcriil  Clninis  Worked  Tojretlier— 
Work  Unrler  Lessees.— G.  S.  §  2137.— The  provi.«ions  of  this  act 
shall  apply  to  all  per.><on.s  who  shall  do  work  or  furnish  materials 
for  the  workinpr  or  development  of  any  mine,  lode,  mining  claim 
or  dcpo.^it  yielding  metals'  or  minerals  of  any  kind,  or  for  the 
working  or  development  of  any  such  mine,  lode  or  deposit  in 
search  of  such  metals  or  minerals  ;  and  to  all  persons  who  shall 
do  work  or  furnish  materials  upon  any  shaft,  tunnel,  incline, 
adit,  drift  or  other  excavation,  designed  or  used  for  the  purpose 
of  draining  or  working  any  such  mine,  lode  or  deposit.  Said 
lien  shall  attach  in  every  case  to  sugh  mine,  lode  and  deposit, 
and  to  such  shaft,  tunnel,  incline,  adit,  drift  or  other  excavation, 
though  such  shaft,  tunnel,  incline,  adit,  drift  or  other  excavation 
be  not  within  tlie  limits  of  such  mine,  lode  or  deposit :  /rovidrd, 
that  when  two  or  more  such  mines,  lodes  or  deposits,  owned  or 
claimed  by  the  same  person  or  persons,  shall  be  worked  through 
a  common  shaft,  tunnel,  incline,  adit,  drift  or  other  excavation, 


142  MINERS'  LIEN. 


then  all  the  mines,  lodes  or  deposits  so  worked  shall,  for  the  pur- 
poses of  this  act,  be  deemed  one  mine:  And  provided  further, 
that  this  section  shall  not  be  deemed  to  apply  to  the  owner  or 
owners  of  any  mine,  lode,  deposit,  shaft,  tnnnel,  incline,  adit, 
drift  or  other  excavation,  when  the  same  shall  be  worked  by  a 
lessee  or  lessees.— g  7.   March  2,  lSi>3. 

WatPr  Riffhts  and  Easempiits  Incluilod.— G.  S.  ?  2139.— Said 
lien  shall  likewise  attach  to  rights  of  water  and  rights  of  way  that 
may  in  any  manner  pertain  to  any  kind  of  property  hereinbefore 
specified  and  to  which  such  lien  attaches.— §  9.  Id. 

A  miner  whose  wages  or  contract  money  is  in  default, 
secures  a  lien  by  filing  witli  the  County  Recorder  a  state- 
ment substantially  as  follows  : 

FORM  OF  LIEN    STATEMENT. 

Know  all  jien  by  these  presents,  That  I,  Alexander  Oullett 
do  hereby  give  notice  of  my  intention  to  hold  and  claim  a  lien 
upon  all  the  following  described  property  to-wit:  The  Thomas 
a  Kempis  Lode  Mining  Claim  in  Huh}/  Mining  District,  County 
of  Gunnison,  State  of  Colorado,  of  which  i)roperty  Jo/ut  L.  Routt 
and  Joseph  Watson  are  the  reputed  owners.  Said  lien  is  claimed 
for  work  and  labor  done  by  me  upon  said  lode  (or  materials  fur- 
nished, by  me  to  said  lode  for  the  working  and  development  of 
the  same  and  used  therein)  for  said  owners  and  at  their  special 
instance  and  request  between  the  first  day  of  .luly,  A.  D. 
1887  and  the  first  day  of  December.  A.  D.  1887,  both  dates  inclusive 
upon  the  following  ab.stract  of  indebtedness: 

Whole  amount  of  debt $742.0 

Whole  amount  of  credit 441.00 


Balance  due- the  claimant.  .   .      S301.00 

Witness  my  hand  this  second  day  of  .January,  A.  D.  18  88. 

Alexandek  Gullett. 
State  GF  Coi^ORADo,     | 
County  of  Gunnison,      \     ' 
Before  me,  the  subscriber,  V.  F.  Axtell,  a  Notary  Public  in 
and  for  said  County,   ijersonally  appeared  Alexander  GiUlett, 
who,  being  duly  sworn,  saith  that  the  foregoing  statement  and 
abstract  of  indebtedness,  and  the  matters  and  things  therein  set 
forth,  are  true  to  the  best  knowledge,  information  and  belief  of 
atTiant.  * 

Sworn  and  subscribed  before  me  this  Ind  day  of  January 
A.  D.  1888. 

V.  F.  AXTELL, 

Notary  Public.    [Seal.] 


MINERS'   MEN.  143 

Time  to  I'ilo.— The  above  statement  must  be  filed 
within  60  days  after  quitting;,  when  tlie  work  is  done  for 
the  owner;  within  forty  days  when  done  under  a  con- 
tractor. 

When  the  claimant  is  a  sub-contractor,  strike  out  "for 
said  owners  and  at  their  special  instance  and  request"  and 
insert  "  at  the  special  instance  and  rcquestof  Daniel  Roberts, 
a  contractor  under  said  owners." 

Six  Months  to  Sue. — An  action  must  be  commenced 
to  enforce  the  lien  within  six  months  after  filing  the  state- 
ment or  the  lieu  is  lost. 

A  Sub-Coiitracioi"  may  stay  money  coming  to  his 
principal  under  the  terms  of  G.  S.  ^  2142  by  warning  in  ad- 
vance, filed  with  the  Recorder. 

Where  mines  are  worked  as  a  group  the  whole  are  con- 
sidered as  one  mine  for  lien  purposes. 

A  lieu,  it  seems,  may  be  filed  for  any  balance  however 
small. 

A  miner  has  no  .Statutory  lien  upon  the  ore. 

A  party  working  under  lessees  has  no  lien. 

A  party  engaged  in  hauling  ore  from  the  mines  to  the 
quartz  mill  has  no  lien  on  the  mine.— Barnard  v.  McKensie, 
9  M.  B.  403. 

A  mining  foreman  or  superintendent  has  a  lien.— Pal- 
mer v.  UncasM.  Co.,  70  Cal.  Gil.  Fieo  Smallhonse  v.  Kentmhj  M. 
Go.  9  M.  R.  :iSS ;  RaraAcis  Co.  v.  Bouscher,  9  Colo.  3S5. 

Lion  of  ."Purveyor  or  Civil  Kngineor.— G.  S.,  ?,  2138.— The  pro- 
visions of  this  act  shall  apply  to  surveyors,  civil  and  mining  en- 
gineers doing  any  woik  of  surveying  "or  platting'  of  anv  minc« 
mining  claims,  lodes  or  mineral  deposits,  and  tlicv  shall  hrf^e 
like  lien  and  claim  as  other  persons  under  the  provisions  of  thi^ 
act.— g  8.  Mar.  2,  1883. 


144  CONVEYANCE. 

Tha  following  form  is  adapted  from  the  Statute  to  the 
case  of  surveyor's  lieu  : 

FORM  OF  STATEMENT  FOE  SUEVEYOE'S  LIEN. 

Kn'ow  all  men  by  these  presents,  That,  I,  Albert  E.  Chase 
do  hereby  give  notice  of  my  intention  to  hold  and  claim  a  lien 
upon  all  tho  following  described  property  to-wit :  The  !St.  Fran- 
cis (le  6'a/e.v  Lode  Mining  Claim  in  Queims  Mimng  District,  Coun- 
ty of  Clear  Creek,  State  of  Colorado,  of  which  properly  J.  Frank 
Snodr/rnss  is  the  reputed  owner.  Sai't  lien  is  claimed  for  work 
and  labor  done  by  me  in  surveying  and  5  l.ittinjr  said  lode, 
at  the  special  instance  and  re<iuest  ot  said  owner,  by  running 
the  lines  of  the  same  as  Surveij  Lot  No.  'i'i'i  for  U/iiled  Slates 
patent  find  making  plat  of  the  same  fw  the  same  purpose  be- 
tweLji  the  \~th  day  of  March  and  the  first  day  of  April  A.  D. 
183S,  both  dates  inclusive,  upon  which  accrued  the  following  ab- 
stract of  indebtedness : 

Whole  amount  of  debt     $60.00 

Whole  amount  of  credit 20.00 

Balance  due  the  claimant  .  .  S40.00 

Witness  my  hand  this  9th  day  of  April  A.  D.  1S88. 

Albert  E.  Chase. 
Verify  as  on  page  142. 

To  claim  a  lieu  the  surveyor  is  not  required  to  be  a  U. 
S.  Deputy  :  and  an  underground  as  well  as  surface  survey 
is  protected.     No  lien  is  given  for  surveying  a  mill  site. 


CONVEYANCE  OF  MINlNi;  PROPERTY. 


Deeds. — The  ordinary  printed  forms  of  deeds  are  usu- 
ally sufficient  to  convey  mining  claims,  but  owing  to  tho 
common  practice  of  employing  conveyancers  totally  discon- 
nected with  the  legal  profession,  few  abstracts  when  the 
deeds  as  recorded  at  length  are  examined  from  the  memo- 
randum oa  the  abstract  can  show  an  unbroken  line  of  per- 
fect conveyances.  A  common  imposition  is  to  present  a 
deed  in  the  form  of  a  warranty  purporting  to  couvey  "all 
t\iQ  riqht,  I'Mt  and  interest   of  the  party  of  the   first   part," 


CONVEYANCE.  145 

which  amounts  to  no  more  than  a  quit-claim  ;  or  to  make 
tho  consideration  of  a  warranty  deed  nominal,  which  has 
the  same  eflect. 

Deed  Subilividinj;  Ijotle  (^laiiti. — Owing  to  the  re- 
lations of  the  dip  to  tho  strike  when  a  lino  is  drawn  across 
a  lode  claim  at  rijjht  angles  to  the  side  lints  at  the  surface, 
such  line  being  intended  for  the  division  line  between  the 
j)art  retained'aud  the  part  sold,  such  line  when  carried  ver- 
tically downward  may  cut  off  tho  vein  on  its  dip  in  such  a 
way  as  to  divide  it  in  an  unexpected  manner.  If,  for  in- 
stance, at  the  surface,  it  begins  at  the  "west  eud  of  Dis- 
■  covery  Shaft,"  it  may  leave  the  bottom  of  such  shaft  entirely 
on  one  fraction  of  the  lode  within  a  comparatively  few  feet 
of  sinking.  Such  result  or  a  similar  result  will  invariably 
occur  where  the  vein  has  a  dip,  unless  the  end  lines  are  at 
an  exact  right  angle  to  the  strike  of  the  vein. 

FOKM  OF  WARRANTY  DEKD  ON  PATENTED  CLAIM. 

Tins  INDENTURK  maflc  this  tenth  day  of  June  in  the  year  of 
our  Lord  one  thousand  ei,!,'ht  hundred  and  eighty-srirn  between 
Thomas  M.  /^o?f<";i  of  the  County  of  Rio  Grande.  State  of  Colo- 
rado, party  of  the  first  part  and  John  Clef/horn  of  the  same  place, 
party  of  the  second  part,  witncsseth,  that  the  said  party  of  the  first 
part,  for  and  in  consideration  of  the  sum  of  ten  thousand  dollars, 
to  him  in  hand  paid  l)y  tlic  said  ]iarty  of  the  second  part,  the 
receipt  whereof  is  hereby  acknowledged,  hath  granted,  bar 
gained  and  sold  and  by  these  presents  doili  grant,  bargain,  sell 
and  convey  unto  tlie  said  T)arty  of  the  second  part,  his  heirs  and 
assigns,  all  the  following  described  real  estate,  situate  in  Summit 
Mining  District,  County  of  Ji'io  Grande,  State  oi  Goloradn,  to-wit  : 
The  Golc.ondn  Lode  Mining  claim,  known  as  Survey  Lot  No.  777, 
eituato  on  Soutli  Mountaiit  l)eing  L-VIO  feet  in  longtii  and  300  f<'et 
in  width,  together  with  all  and  singular  the  lodes  and  veins 
within  tlic  lines  of  said  claim  {and  not  excepted  oti  tfie  nflicial 
p/o/)  and  the  dips,  sy)urs,  mines,  minerals,  easements,  dumps, 
plant,  fixtures,  improvements,  riglits,  privileges  and  appnrte- 
nanees  thereunto  in  anywise  belonging.  To  have  and  to  hold 
the  lands,  tenements  and  hereditaments  hereby  conveyed  unto 
the  .said  party  of  t  lie  second  part,  his  heirs  and  assigns,  forever. 
And  the  said  party  of  the  first  part,  for  himself,  his  heirs,  execu- 
tors and  administrators,  doth  hereby  covenant  and  agree  with 
tho  said   party  of  the  second  part,   his  heirs,  and  assigns,  that 


146  CONVEYANCE. 

the  said  premises  and  every  part  thereof  are  free  and  clear  of 
and  from  any  and  all  liens!  incumbrances,  trusts  and  taxes,  and 
that  he,  the  said  party  of  the  lirst  [jurt,  his  heirs,  executors  and 
administrators,  unto  the  said  parly  of  the  second  part,  his  heirs 
and  assigns,  the  said  premises  and  every  part  thereof  against 
himself,  his  heirs  and  assigns,  and  every  other  person  lawfully 
claiming  or  to  claini  the  same  or  any  part  thereof,  shall  and  will 
warrant  and  forever  defend  ;  always  saving  and  excepting  (he 
same  provisoes,  reservations  and  limitations  contained  in  the 
patent  of  the  United  States  issued  for  said  survey  lot.  In  wit- 
ness whereof  the  said  party  of  the  first  part  hath  hereunto  set  his 
hand  and  seal. 

Thomas  M.  Bowen.    [Seal.] 

Statb  of  Colorado,     \ 
County  of  Rio  Gnmde,  j  "''• 

1,  George  C.  lierhn,  a  Notary  Public  in  and  for  said  Counly, 
do  hereby  certify  that  Thomax  M.  Bown,  who  is  personally 
known  to  me  to  be  the  same  person  described  in  and  who  exe- 
cuted the  within  indenture,  personally  appeared  before  me  this 
day  and  acknowledged  that  he  signed,  sealed  and  delivered  the 
said  indenture  as /lis  free  and  voluntary  act  and  deed  for  the 
uses  and  purposes  therein  set  forth. 

Witness  my  hand  and  Notarial  seal,  this  tenth  day  of  June, 
A.  iJ.  18S7. 

GeORGK  C.    BERT.IN, 

Notary  Public.    [Seal  ] 

Witiie.ssesa. — No  attesting  witnesses  are  required  to  a 
deed  conveying  land  in  Colorado. 

Wifc'.s  SigiiRtare. — The  wife  is  not  required  to  join 
in  the  husband's  deed  nor  the  husband  in  the  wife's  deed^ 
nor  is  any  separate  acknowledgment  required  where  the 
deed  is  made  by  a  married  woman.  The  only  special  pro- 
vision relating  to  conveyance  when  property  is  conveyed 
by  a  married  woman,  is  that  lier  warranty  is  made  void  by 
Statute,  and  her  deed  cannot  be  efl'ective  to  pasS 
an  after  acquired  title. — G.  S.  ^  223.  This  is  the  Statute  in 
terms,  but  it  is  doubtless  qualified  by  the  act  of  1874,  G.  8. 
^  2278,  giving  a  married  woman  power  to  •' sell  and  convey' 
the  same  as  if  she  were  sole. 

Warraiily  of  Claim   Entered  for  Patent. — Use 

the  same  form  inserting  the  words  "  to  he,"  before  "'issued," 


CONVEYANCE.  147 

and  adding  tho  words  "as  entered  in  the  Land  Ojpce,"  aiter 
thn  words  "said  survey  lot"  in  Ibe  saving  clause  of  the  war- 
ranty. 

Warranty  of  Possessoiy  Claims. — Use  the  same 
form  as  for"  Patented  Claims,"  omittiug  the  words  "Survey 

I,ot  No. ,"  and  omitting  the  clause  between  the  words 

"  forever  defend"  and  "  in  witness."  Instead  of  such  clause 
insert  "  Always  saving  and  excepting  the  IJjiited  States  of 
America." 

Special  AVarranty. — When  the  grantor  desires  to 
warrant  bis  own  chain  of  title,  but  not  against  i)arties  claim- 
ing under  other  locations,  insert  before  the  words  "'shall 
and  will  warrant,"  this  clause  "by,  through  or  tinder  the  said 
party  of  the  first  jtart,  or  his  grantors,  as  the,  or  parcel  of  the, 
Golconda  claim  or  location." 

QUIT-CL.\IM  DEED  ON  POSSESSOKV  LODE  CLAIM. 

This  Indenture,  made  this  thirty-first  day  of  December,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  eighiy-.s/a; 
between  Ja»if.<!  3/.  Dmli/,  of  the  County  of  Arapahoe,  «ta"te  of 
Colorado,  party  of  the  tirst  part,  and"  Kelirf  Jackson,  of  the 
County  of  'Jippccanne,  State  of  Indiana,  party  of  the  second 
part,  witnesseth,  that  ihe  said  party  of  the  first  part,  for  and  in 
consideration  of  the  sum  oi  One  Thousand  Dollars,  to  him  in 
hand  paid  l>y  the  said  party  of  the  second  part,  the  receipt 
whereof  is  hereby  acknowledged,  hath  remised,  released  and 
quit-claimed,  and  by  these  presents  doth  remise,  release  and 
quit-claim  unto  the  said  party  of  the  second  p:irt,  his  heirs  and 
assigns,  all  the  following  desc^ribed  real  estate,  situate  in  The  Cun- 
solidalpfl  Ten  Mile  Mining  District,  County  of  .S'MoinnV,  .'^tatc  of 
Coloiado,  to-wit :  The  I)e  diofo  Lode  Mining  Claim,  situate  on  the 
wc-'t  slope  of  Sheep  Mountain.  l.'M)  feet  in  length  and  ITiO  feet  in 
width.  Together  with  all  and  singular  the  lodes  and  veins  with- 
in the  lines  of  said  claim,  and  the  dips,  spurs,  mines,  minerals, 
easements,  mining  li.vlurcs,  improvements,  rights,  privileges  and 
app\irtenances  thereunto  in  anywise  belonging.  To  have  and  to 
hold  the  lands,  tenements  and  hereditaments  hereby  conveyed 
unto  the  said  r>arty  of  the  second  part,  his  heirs  and  "assigns,  for- 
ever. In  witness  whereof  the  said  party  of  the  first  part  hath 
hereunto  set  his  band  and  seal. 

James  M.  Daily.    [Seal.] 


148  CONVEYANCE. 

Lot  Patented  or  Entered   for  Patent. — Use  the 

same  form,  addingto  the  descriptiou  after  the  word  "chiim," 
''knovm  as  survey  lot  No. ." 

Jf  the  quit-claim  be  a  mere  release  the  operative  words 
are,  as  above  used  "remise,  release  and  quit-claim ;"  but  if 
it  be  intended  to  pass  any  after  acquired  title,  add  the 
words  "sell  and  convey,"  after  the  word  "  quit-claim." — G.  S. 
?  201. 

Short  Form  of  Deed.— By  act  of  1887  (Sess.  Laws 
p.  226)  short  forms  of  warranty  and  quit-claim  deeds  are 
introduced.  The  implied  warranty  which  the  vendor  in 
ignorance  of  its  nature  is  made  liable  for  by  this  statutory 
form,  is  totally  inapplicable  to  mining  claims  whether  pat- 
ented or  possessory.  It  would  make  the  vendor  liable,  if 
liable  for  anything,  for  a  fee  simple  title  even  to  making 
good  the  exceptions  on  the  face  of  the  patent.  If  used  in 
conveying  a  possessory  claim  there  is  a  breach  of  the  war- 
ranty the  moment  the  instrument  is  delivered.  What  is 
conveyed  by  the  so  called  short  form  of  quit  claim  deed,  it 
is  impossible  to  say.  The  entire  set  of  forms  should  be  dis- 
carded in  the  mining  counties.  Where  used  for  conveying 
other  classes  of  realty  they  are  almost  equally  treacherous 

Acknowleflgincnts,— In  the  State  are  taken  before 
any  Notary  Public,  Supreme,  District  or  County  Judge, 
Clerk  of  Supreme.  District  or  U.S.  Circuit  Court,  or  County 
Recorder,  whether  the  lands  lie  in  his  county  or  elsewhere; 
before  a  Justice  of  the  Peace  of  the  county  where  the  claim 
is  situate,  or  before  a  Justice  in  another  county  with  the 
addition  of  a  certificate  from  the  Recorder  as  to  his  signa- 
ture, &c.—Acts  of  1887,  p.  2.30.     C.  S.  \  211. 


convb:yance.  149 

Beyond  tlie  State  they  slioiild  lie  taken  l)efore  a  Cotn- 
missioncr  of  Deeds,  or  Clerk  of  a  Court  of  Record;  if  be- 
fore any  other  officer,  special  certificates  are  required 
wliicli  are  almost  invariably  found  defective. — Id. 

In  any  foreign  country  tliey  should  be  taken  in  open 
court  and  certified  by  a  Judge  of  the  Court  under  its  seal ; 
or,  before  a  Maj-or  of  a  city  under  the  corporate  seal ;  or  be- 
fore a  Consul  under  the  seal  of  his  Consulate. — Id. 

For  form  of  Acknowledgment  by  an  individual  see 
page  146.  The  following  are  correct  forms  in  the  case  of 
corporations  and  deeds  executed  under  Power  of  Attorney. 

by  coepokatiox. 

State  of  Colorado,     i 

La  Plata  Ooxxniy,  ^^■ 
I.  Solon  IV.  Pinqrey,  a  Notary  Publicin  and  for  said  county, 
do  hereby  cenit'y  tUiit  John  Glenn.  President  of  the  Coldstrcnn 
Mining  (;omi)any,  who  is  personally  known  to  me  to  bo  such 
President,  and  the  same  person  who  as  such  President,  atlixed 
the  corporate  name  and  seal  of  sn id  Company  to  the  above  In- 
denture, personally  appeared  before  me  this  day  and  acknowl- 
edged the  same  to  be  the  free  and  voluntary  act  and  deed  of  the 
said  Corporation  for  the  uses  and  purposes  therein  set  forth 

Witness  my  band  and  Notarial  Seal  this  flrsl  dav  of  M(ty  A. 
D.  isss.  Solon  W.  Pinguey, 

[Seal.]  Notary  Public. 

by  attokxey  in  fact. 

State  and  District  of  Colorado,  k 
Arapahoe  Oonnly,  ) 

I,  Williiim  A.  WUlard,  Clerk  of  the  Circuit  Court  of  the 
United  States,  in  said  District,  do  hereby  certify  that  Ana  t<\ 
Midil'iu(/h,  -Vitorney  in  Fact,  of  the  within  named  /.  N.  Large, 
who  is  personally  known  to  me  to  be  such  .\ttorney  in  Fact,  and 
the  same  person  within  descrioed  as  such  Attorney  in  Fact,  and 
who  alTixed  the  name  and  seal  of  his  said  principal  to  the  witliin 
Indenture,  personally  appeared  before  methisda>  and  acknowl- 
edged the  .said  Ind''nlure  to  be  the  free  and  voluntary  act  and 
deed  of  the  said /.  JV. /,«;-yt'  for  the  uses  and  purposes  therein 
set  forth. 

Witness  mv  hand  and  the  Seal  of  said  Court,  this  firxt  day  of 
May  \   I).  188«.  William  A.  Willakd, 

[Seal.]  Clerk  of  Court. 


150  CONVEYANCE. 

Agreements  for  Deed, — Are  usually  in  the  shape 
of  a  Title  Bojid,  time  being  made  of  the  essence  of  the  con- 
tract in  every  form  in  use ;  but  an  executory  contract  in 
any  other  form  under  seal,  is  of  equal  validity. — G.  S.  § 
215-217.  A  Title  Bond  should  always  express  a  part  of  the 
consideration  as  paid  or  contain  some  covenant  by  the  ven- 
dee, as  for  instance  to  develop  t'.e  property — to  avoid  the 
possibility  of  its  being  held  void  for  want  of  mutuality. 

Naked  Title  Bonds  have  been  ruled  in  this  State  to  ba 
mere  options  and  therefore  without  consideration  and  re- 
vocable. Smith  V.  Reynolds,  2  M.  B.  237 ;  Finerty  v.  Frits,  1 
M.  R.  437.  But  where  the  holder  of  the  bond  pays  a  part 
of  the  consideration  or  agrees  to  develop  the  property  or  in 
any  other  aianuer  gives  a  valid  consideration  the  agree- 
ment is  valid,  and  when  recorded  binds  tiie  property. 

TITLK  BOND. 

Know  all  men  by  these  presents.  That  T,  Dennis  Sulli- 
van, of  the  CowUy  of  Arapahoe.  Slate  of  Colorado,  am  held  and 
firmly  bound  unto  David  F.  Day  of  the  County  of  Oiira.ij  in  said 
State  in  the  penal  .sum  of  Forty  Thousand  Dollars  to  be  paid  to 
the  said  David  F.  Dai),  his  heirs,  executors,  administrators  or  as- 
signs ;  to  which  payment,  well  and  truly  to  be  made  /do  bind 
myself,  my  heirs,  executors  and  administrators,  and  every  of 
them,  jointly  and  severally,  firmly  by  these  presents. 

Witness  my  hand  and  seal  this  fourth  day  of  July,  in  the 
year  of  our  Lord  one  thousand  eiglit  lunidrcd  and  ch^hxy-seven. 

WiiKREAs,  the  above  bounden  Obligor  /ia</i  this  day  .sold  to 
the  said  David,  F.  Day  certain  real  estate  situate  in  linttle  Moun- 
tain Mining  District,  County  of  Ea.f/le.  State  of  Colorado,  to-wit : 
The  Lefjakly  Lode  Mining  claim  (Survey  Lot  No.  9!))  containing 
1,500  feet  in  length  by  300  feet  in  width,  on  Bailie  Mountain, 

Together  with  all  and  singnlar  the  lodes  and  veins  within 
the  lines  of  said  claim  (and  not  excepted  on  the  official  plat)  and 
all  mines, minerals,  dumps,  plant,  fixtures,  machinery,  tramways, 
improvements,  rights,  privileges  and  appurtenances  therentuo  in 
anywise  belonging  for  the  sum  of  Iwenty  Thousand  Dol\a,rs  to 
be  "paid  to  the  said  obllgt*,  his  executors,  administrators  or  as- 
signs or  deposited  to  his  credit  in  tlic  Denver  National  Dank, 
Denver.  Colorado,  on  or  before  the  tenth  day  of  May,  A.  D.  1888, 
and  for  the  further  consideration  that  said  obligee  shall  before 
said  last  mentioned  date  expend  the  sum  of  at  least  0"p  Thous- 
and Dollars  in  the  actual  underground  development  ot  said  prop- 
erty. 


CONVEYANCE.  |5I 


Now  Theuefore,  the  condition  of  the  above  Obligation  is 
such,  that  if  the  above  boiinden  Obligor,  /jw  heirs  or  assigns,  on 
pavment  or  deposit  of  the  said  sum  of  Twrnli/  Tliousnnd 
J)(>lhir>  in  manner  aforesaid,  and  expressly  withni  the  time  lim- 
ited as  aforesaid,  time  being  of  the  essence  of  this  contract  as  to 
8uch  payment  or  deposit,  shall  make,  execute,  ackno\vledi;e  and 
deliver  at  Ins  own  cost  and  charges,  good  and  sullicient  Deed  or 
Deedsof  Genera/ Tr((crf/7i/.y  to  the  said  David  F.  Dii]i,  his  heirs 
and  assigns  or  to  such  person,  persons  or  company  as  he  shall 
nominate,  conveying  said  premises  with  good  and  perfect  title, 
free  from  incumbrance,  then  this  Obligation  to  be  void,  otherwise 
to  remain  in  full  force  and  virtue. 

DENNts  Sullivan.    [Seal.] 

In  consideration  for  the  option  expressed  in  this  Obligation  I 
agree  to  expend  the  sum  of  SI. 000  therein  mentioned  upon  the 
within  described  property  within  three  months  from  the  date  of 
this  Bond.  Witness  mv  hand  and  seal  this /ourt/i  day  of  Julii 
A.  D.  18.S7.  "  David  F.  Day.       [Seal.] 

WORKIN'G    CO.VTRACT   SALE. 

For  and  in  consideration  of  the  sum  of  S500  to  me  in  hand 
paid  by  liabtrl  Barboar,  tlie  receipt  whereof  is  hereby  acknowl- 
edged," I,  CVia.v.  //.  Uorrin,  do  hereby  agree  to  place  said  Robprt 
Jiitrboiir  in  full  and  sole  possession  and  control  of  the  Fair  De- 
ceiver Lode  Mining  Claim,  situate,  etc.  :  with  authority  to  work 
and  prosjiect  the  same  as  he  sees  fit  for  the  term  of  sixljj  da,i/.<t 
from  date,  provided  only  that  such  work  be  done  in  good  and 
workmanlike  manner,  ami  that  any  ore  taken  out  shall  be  sep- 
arated and  left  on  the  dump  and  not  removed  during  the  life- 
time of  tliis  contract.  And  at  any  time  within  said  period  on 
tender  to  me  of  the  further  sum  of  54,.i00, 1  agree  to  deliver  a 
good  and  suttieient  Warranty  Deed  to  the  said  liohert  Barbour 
his  heirs  and  assigns,  conveying  said  above  described  premises 
absolvitely  and  clear  of  encumbrance. 

In  case  no  sucli  tender  is  made,  said  .'sum  of  SiiOO  is  to  be  treat- 
ed as  the  consideration  of  this  option  and  right  of  testing  and  to 
be  lovfeited  to  me  absolutely. 

In  case  my  title  is  found  defective  and  I  fail  to  make  it  good 
and  clear  witliin  .said  period  I  agree  to  pay  to  said  Robert  Barbour 
the  cost  of  abstract  and  the  vendee's  attorneys  reasonable 
charges  for  examination  of  title  and  to  refund  said  sum  of  S.5tX). 

The  ore  taken  out  during  said  period  is  to  be  the  property  of 
the  party  who  remains  or  becomes  the  owner  at  the  end  of  said 
period  of  sixty  days. 

Time  is  ol"  theessence  of  this  contract  in  all  particulars. 

Witness  my  hand  and  seal  this  VMi  day  of  May  A.  D,  1S88. 

Charles  U.  Morris.    [Seal,] 

SAI.E  .«UB.JECT   TO  EXAMINATION. 

The  undersigned  William  M.  McMechm  of  etc.,  hath  agreed 
to  sell  to  Cluirli'H  K.iufinun,  of  etc.,  and  said  Kan/man  hath 
agreed  to  buy  of  and  from  said  McMtchen  the  Kihg  JSolomon 


152  CONVEYANCE. 


Lode  Mining  Claim  situate  in  Grtqnrij  Mining  District,  Uilpin 
County,  Colorado,  for  the  consideration  of  S18,0yi)  to  be  paid 
within  six  mnnth.t  from  date,  fee  simple  (or  good  possessory) 
title  to  be  delivered  and  warranted,  clear  of  liens.  Title  .subject 
to  approval  of  f7«o. /i.  Kn/m,  attorney  for  purchaser.  Costs  of 
deeds  to  be  paid  by  vendor ;  of  examination  of  title,  by  pur- 
chaser. Vendor  to  deliver  at  his  own  cost  certified  abstracts  of 
title  within  ten  days  to  said  attorney.  Deeds  to  pass  on  tender  of 
the  sum  above  meiitioned  within  tlie  period  of  six  months  above 
limited.  If  no  tender  is  made  within  such  period  the  inirehaser 
shall  be  in  default  unless  he  show  the  title  materially  defective,  or 
apriorbreach  of  contract  by  vendor orthat  materiarmisrepreseut- 
ations  as  to  the  mine  or  mineral  have  been  made  to  him  by  the  ven- 
dor or  by  parties  in  the  interest  of  the  vendor,  and  thereupon  eith- 
er party  may  proceed  for  specific  performance  or  for  damages  or 
both  or  otherwise  as  he  may  be  advised 

Witness  the  hands  and  seals  of  said  parties  this  2Uh  day  of 


^pn7,  A.  D.  18SS.  William  IM.  McMechen.    [Seal 

Charles  Kauf.man,  [Seal 


CONTR.\CT  TO  SELL  AND  TO  BUY. 


:j 


I,  Ed.  O  Vfolcott,  Vendor,  hereby  agree  to  sell  to  Charles  8. 
Thomas,  and  I,  Charles  S.  Thomas,  Purchaser,  agree  to  buy  of 
the  said  £d.  O.  WolcottWiQ  Dream  Vlo-fiQi  Mining  Claim  situate 
etc. 

The  agreed  consideration  of  said  .sale  is  31,000  cash  in  hand 
paid  the  receipt  whereof  is  hereby  acknowledged:  i.S.OOO  to  be 
paid  within  sixty  days  from  date  hereof  and  Jii.OOO  within  ninety 
duys  from  such  date,  making  a  total  consideration  of  S10,iiOO. 

Said  Vendor  within  ten  days  from  date  will  deliver  to  pur- 
chaser or  his  attorney  an  abstract  of  title  duly  certified  by  the 
Clerk  and  Recorder  of  said  County  or  by  some  reputable  abstract 
office,  together  with  all  the  original  title  papers  which  are  in  his 
possession  or  within  his  power  to  produce. 

And  within  .said  time  will  place  in  escrow  in  the  Denver  Na- 
tional Ban/i  a  good  and  sufticient  warranty  deed  conveying  to 
said  Charles  H.  T!-,niir.s,  Or  such  person  as  he  shall  nominate,  the 
said  ])remises  clear  of  encumbrance,  to  bo  by  such  bank  held  in 
escrow  until  final  payment  be  made  under  this  contract  or  de- 
fault is  made  under  the  same.  Deposit  in  said  bank  to  the  credit 
of  Vendor  shall  be  equivalent  to  payment  of  any  of  said  install- 
ments. 

Time  is  of  the  essence  of  this  contract  as  to  each  and  every 
installment  and  if  any  installment  or  installments  be  not  paid 
within  the  time  or  tinies  hereby  limited  therefor,  all  previous  in- 
stallments shall  be  and  remain  the  jiropcrty  of  said  Vendor,  the 
deed  in  escrow  shall  be  returned  to  him  for  cancellation  and  the 
property  sliall  remain  his  own.  unalfected  and  unencumbered  by 
this  contract.  But  if  he  fail  to  deliver  abstract  within  .said  period 
or  to  deijosit  said  deed  in  escrow,  or  if  his  title  prove  encumbered 
or  otherwise  not  marketable,  vendee  may  recover  any  and  all 


CONVKVAN(  i;.  153 

installments  paid  or  miiy  sue  for  specific  performance  arul  for  a 
pcrfrct  title  or  for  damages  or  otherwise  as  he  may  be  advised. 
Witness  the  hands  and  seals  of  said  parties  this  tenth  day  of 
May,   A.  D.  l.sv'*. 

Kdwaud  O.  Wolcott.       [Seal.] 
Cii.vr.LicsS.  Thomas.         [Seal.] 

A  better  because  a  fixirer  coiuract  than  tlie  last  above 
given  is  a  sale  by  deed,  securing  tbe  unpaid  installments  by 
note  and  niortfiago. 

The  terms  of  salo  are  so  variant,  the  temptations  to 
evade  become  so  great  with  the  fluctuations  in  value,  that  i{ 
is  always  preferable  to  state  the  bir;.i:iiu  fully  to  an  attor- 
ney joiutlj^a^ireed  on  and  whose  compensation  is  not  made 
contingent  on  tlie  sale,  and  to  have  him  place  the  bargain 
in  such  form  as  will  express,  without  fiction  or  verbiage, 
the  real  intention  of  the  parties. 

^^sol  o\v. — Where  a  title  bond  or  other  executory  con- 
tract is  delivered  it  is  usually  accompanied  by  a  deed  exe- 
cuted and  acknowledged  and  placed  in  escrow.  An  escrow 
amounts  to  a  deposit  with  a  third  party  of  an  unrecorded 
deed  to  be  delivered  on  certain  conditions,  the  title  bond 
being  recorded  in  the  meantime.  Such  escrow  is  usually 
in  the  slmpe  of  a  deed  enclosed  in  a  sealed  envelope  and 
endorsed  as  follows: 

To  A.  A.  Dknman',  Cashier  :—Vou  are  authorized  to  deliver 
the  within  Deed  to  Jo  Jiri/no/ds.  his  agent  or  order,  upon  payment 
to  me.  or  deposit  to  my  order,  of  the  sum  of  ten  Ihousdrid  dollars, 
on  or  before  the  first  day  of  January,  A.  D.  18^9.  Meanwhile 
you  will  hold  the  same  irrevocably.  If  payment  is  not  made  on 
or  before  said  date,  you  will  return  the  same  to  me  for  cancella- 
tion. John  L.  Koutt. 

JSlovember  30,  1888. 

An  escrow  is  often  placed  on  deposit  without  any  title 
bond,  or  the  agreement  is  delivered  on  condition  of  not  go- 
ing on  record,  the  vendor  objecting  to  clouding  the  title  by 
recor.ling  executory  agreements  which  will  perhaps  never 
result  in  a  convoyencc.  Such  an  escrow  is  valid  in  all  re- 
spects, except  that  of  giving  the  purchaser  record  security. 


154  MINING    LEASE. 

MINING  LEASE. 


"Written  or  Verbal. — The  lease  if  for  more  than  one 
year  must  be  in  writing  to  avoid  the  statute  of  frauds  (G. 
S.,  ?  1517)  and  sliould  be  recorded.  If  for  a  less  period  it  is 
still  in  general  reduced  to  writing  and  the  covenants  being 
peculiar  cannot  be  too  particularly  expressed. 

Set  AVork. — In  large  mines  worked  on  the  tribute 
system  the  lease  is  generally  verbal  between  the  foreman 
and  the  miner,  and  is  more  in  the  nature  of  a  contract  of 
hiring,  the  foreman  retaining  general  control  of  the  work. 

Dead  Work. — The  following  form  is  correct  to  the 
extent  of  the  usual  covenants,  but  there  are  often  special 
covenants  added  in  regard  to  "dead  work"  and  other  mat- 
ters. Dead  work  is  a  term  of  the  popular  language  and 
means  sinking  shafts  and  running  drifts,  adits  or  cross-cuts 
or  it  may  embrace  everything  except  sloping  and  the 
timbering  incidental  to  stoping.  Its  meaning  being  so  gen- 
eral it  should  not  be  used  at  all  and  the  intention  should  be 
covered  by  more  exact  expressions. 

It  is  a  common  stipulation  to  require  no  royalty  for 
ore  extracted  in  sinking  or  in  driving  levels.  Where  dead 
work  is  to  be  paid  for,  care  should  be  taken  to  express 
whether  the  compensation  is  to  come  "  out  of  the  first  mill 
returns"  or  ''out  of  the  royalty."  In  the  latter  case  the 
lessor  pays  for  all  of  it.  In  the  former  he  pays  a  share 
equivalent  to  his  proportion  of  the  proceeds.  In  wording 
this  covenant  a  personal  liability  may  be  incurred  if  not 
properly  expressed. 

The  royalty  reserved  neee.ssarily  variea,  20  or  25 

per  cent,  being  the  usual  amount,  and  5  and  GO  per  cent, 
being  extreme  limits. 


MINING    LEASE.  155 


FOKM    OF  LEASE. 


This  iNDKNTrRE,  iniuls  this./ir.?<  day  of  June,  in  the  year  of 
our  Lord  one  thousiuid  eight  hundred  and  cighty-eif/fit.  l;et\veen 
W'i/lkoii  A.  Ilinnill,  of  llu-  County  of  Clear  Creek,  ISlate  of  Col- 
orado, les.sor,  and  i4e<>rqp  Ji.  Tyler,  of  Haatinqs,  Slate  of  Kebras- 
kti,  lessee  or  tenant,  witiiesseth,  that  the  s-aid  lessor,  for  and  in 
consideration  oftlie  royalties,  covenants  and  agreements  here- 
inafter reservt  d,  and  hy  the  .^^aid  lessee  to  be  paid,  kept  and  per- 
formed, hnth  granted,  demised,  and  let  and  by  these  presents 
doth  grant,  demise  and  let  unto  the  said  lessee,  all  the  following 
described  mine  and  mining  properly,  situate  in  iTriffith  Mining 
iJistriet,  County  of  Clear  Creek,  State  of  Colorado,  tow  it  .•  The 
Duiiderbcry  Lode  ilining  Claim,  Hurvey  Lot  JS'o.  172,  together 
with  the  appurt'^riiances.  To  have  and  to  hold  unto  the  said  lessee 
for  the  term  of  o)ie  j/ear  from  date  hereof,  expiring  at  noon  on 
the  olst  day  of  May,  A.  D.'l^S'J.  unless  sooner  forfeited  or  deter- 
mined through  the  violation  of  any  covenant  hereinafter  against 
the  said  tenant  reserved. 

And  in  consideration  of  such  demise,  the  said  lessee  doth 
covenant  and  agree  with  said  lessor  as  follows,  to-wit  : 

To  enter  upon  said  mine,  or  jiremises,  and  work  the  same 
mine-fashion,  in  manner  necessary  to  good  and  economical  min- 
ing, so  as  to  take  out  the  greatest  amount  of  ore  possible,  with 
due  regard  to  the  development  and  j^reservation  of  the  same  as  a 
workable  mine,  and  to  the  special  covenants  hereinafter  re- 
served. 

To  work  and  mine  said  premises  as  aforesaid  steadily  and 
continuou.sly  from  the  date  of  this  lease  ;  and  that  any  failure  to 
work  said  premises  w'ith  at  least  two  persons  employed  under- 
ground, for  the  total  number  of  ten  days,  may  be  considered  a 
violation  of  this  covenant. 

To  well  and  sufflciently  timber  said  mine  at  all  points  where 
proper,  in  accordance  with  good  mining;  and  to  repair  all  old 
timbering  wherever  it  may  become  necessary. 

To  allow  said  lessor  and  his  agents  from  time  to  time,  to  en- 
ter upon  and  into  all  parts  of  said  mine  for  purposes  of  inspec- 
tion. 

To  not  assign-  this  lease  or  any  interest  thereunder,  and  to  not 
sublet  the  said  premises  or  any  part  thereof,  without  the  written 
assent  of  said  lessor,  and  to  not  allow  any  person  not  in  privity 
with  the  parties  hereto,  to  take  or  hold  possession  of  said  prem- 
ises, or  any  part  thereof,  under  any  pretense  whatever. 

To  occupy  and  hold  all  cross  or  parallel  lodes,  spurs  or  min- 
eral deposits  of  any  kind  which  may  be  discovered  by  the  said 
lessee,  or  any  jierson  under  him,  in  any  manner,  within  seiwi^j/- 
rtir  feet  of  tlie  center  line  of  said  lode,  as  the  property  of  said 
lessor  with  privilege  to  said  lessee  of  working  the  same  as  parcel 
of  said  demised  premises. 

To  keep  at  all  times  the  drifts,  shafts,  tunnels  and  other  work- 
ings thoroughly  drained  and  clear  of  loose  rock  and  rubbish, 
unless  prevented  by  extraordinary  mining  casualty. 


156  LICENSE 

To  do  no  underhand  stopiiig,  and  to  make  all  shafts  7  feet  long 
by  4  feet  wide  in  the  clear,  and  all  drifts  7  feet  high  by  4  feet 
wide  in  the  clear. 

To  deliver  to  said  lessor,  as  royalty,  25  per  cent,  of  all  ore  to 
be  extracted  from  said  prcrnises,  of  liKe  assay  to  that  retained  by 
said  lessee,  delivered  at  .sow  mrU.  in.  Georgetown,  in  mid  County, 
as  soon  as  mined,  withont  deduction  orcharge  whatever,  except 
lessor's  proportion  for  packing.  Provided,  ulivays,  that  no  roy- 
alty aha// hi;  requiri'd  Tipon  ore  extracted  in  sirtkinri  shafts. 

To  deliver  to  said  lessor  the  said  premises,  vvith  the  appur- 
tenances and  all  improvements  in  good  order  and  condition,  with 
all  drilts.  shafts,  tunnels  and  other  passages  thoroughly  clear  of 
loose  rock  and  rubbish,  and  drained,  and  the  mine  rpady  for  im- 
mediate continued  working  (accidents  not  arising  from  negli- 
gence alone  excusing)  without  demand  or  further  notice,  on  the 
said  :3lst  diy  of  May  A.  1).  18t59,  at  noon,  or  at  any  time  pre- 
vious, upon  demand  for  forfeiture. 

And  finally,  that  upon  violation  of  any  covenant  or  cove- 
nants hereinbefore  reserved,  the  term  of  this  lease  shall,  at  the 
option  of  the  said  lessor,  ex]>ire,  and  the  same  and  said  premises, 
with  the  appurtenances,  shall  become  forfeit  to  .'^aid  lessor  ;  and 
said  lessor  or  his  agent  may  thereupon,  after  demand  of  posses- 
sion in  writing,  enter  upon  said  premises  and  dispo.sscss  all  per- 
sons occupying  the  same,  with  or  without  force  and  with  or 
without  process  of  law  ;  or  at  the  option  of  said  lessor  the  said 
tenant  and  all  person'^  found  in  occupation  may  be  proceeded 
against  as  guilty  of  unlawful  detainer. 

hach  and  every  clau.se  and  covenant  of  this  Indenture  shall 
extend  to  the  heirs,  executors,  administrators  and  lawful  assigns 
of  all  parties  thereto. 

In  witness  whereof,  the  .said  parties  have  liercunto  .set  their 
hands  and  seals.  William  A.  Hamill.    rseal.T 

George  B  Tyler,         [Seal.] 

For  Acknowledgment,  if  desired,  see  p  146. 


LICENSE. 


Instead  of  a  lease  a  license  may  be  granted.  The  dis- 
tinctions between  a  lease  and  a  license  are  technical  but 
important.  They  are  not  usual  in  this  country,  and  on  ac- 
count of  being  revocable  at  the  option  of  the  owner,  must 
obviously  operate  unfairly  against  the  working  party. 

A  license  usually,  is  not  exclusive,  and  invests  the 
licensee  with  no  property  in  tlie  mineral  until  severed. 


PROHPECTKNG    CONTRACT.  157 

Although  a  license  may  be  revoked  at  any  time,  the 
owner  cannot  arbitrarily  oust  the  licensee  without  com- 
pensation for  expenditures  made. 

It  has  been  lately  held  in  California  that  a  lease  which 
did  not  bind  the  lessee  to  work  was  a  mere  license :  Wheeler 
^.  West  11  Pac.  871.  The  holding  is  an  extreme  one  and 
ought  not  to  become  in  conscience  a  precedent  for  the  ex- 
press obligation  to  work  is  not  one  of  the  distinctions  be- 
tween lease  and  license. 


PROSPECTING    CONTRACT. 


Much  litigation  has  grown  out  of  contracts  of  this  kind 
owing  to  the  loose  manner  in  which  they  are  generally  un- 
dertaken and  the  strong  inducement  to  shirk  their  obliga- 
tions when  a  rich  discovery  has  been  made. — Murley  v.  En- 
nis,  12  JI.  R.  3G0.    Johnstone  v.  Robinson,  Id.  396. 

The  following  form  covers  all  the  legal  points  neces- 
sary to  be  guarded  in  this  class  of  contracts : 

FOEM  OP  PROSPECTING  CONTE.\CT. 

In  consideration  of  provisions  advanced  to  me  by  John  L. 
DrmncUon  and  of  his  agreement  tosupply  me  from  time  to  time, 
as  I  may  reasonably  demand  them,  with  tools,  grub  and  mining 
outfit  generally,  and  the  sum  of  fifty  doUais  in  hand  paid,  I  a^ree 
to  prospect  for  lodes  and  deposits  in  Costilia  County,  Colorado, 
and  to  locate  all  discoveries  which  I  may  consider  worth  the  ex- 
l)enditure,  and  record  the  same  in  the  joint  names  of  said  outfit- 
ter and  myself,  and  in  our  names  only,  as  equal  owners.  My 
time  and  labor  shall  stand  against  money,  provisions,  etc  ,  as 
aforesaid  All  expenses  of  survey  and  record  sliall  be  paid  by 
the  outfitter,  and!  a^ree  to  make  no  debts  on  account  of  this 
agreement  Work  done  on  claims  after  record  and  before  the 
expiration  of  this  contract  shall  be  consi<lered  as  done  under  thi 
contract,  and  no  charge  for  labor  or  time  shall  be  made  for  the 


158  EXAMINATION    OF   TITLE. 

same.  This  contract  shall  stand  good  during  the  whole  of  the 
summer  and  fall  of  1888,  and  during  all  of  that  iieriod,  I  will  not 
work  or  prospect  on  my  own  account,  or  for  any  parties  other 
than  said  outfitter.  Wjt.  Middleton. 

Dated  June  1,  1888. 

1  agree  to  the  terms  above  .stated. 

John  L.  Donnellan. 

The  contract  does  not  require  a  seal,  and  is  not  within 
the  Satute  of  frauds,  even  if  verbal. — Miirleij  v.  Ennis. 

If  the  outfitter  neglect  to  furnish  the  agreed  and  neces 
sary  supplies,  such  failure  may  be  treated  as  a  condition 
precedent,  and  the  prospector  is  at  liberty  to  search  for 
mineral  upon  his  own  account. — Id. 


EXAMINATION  OF  TITLE. 


The  written  title  to  a  mining  claim  begins  with  the 
location  certificate,  after  which  the  conveyances  and  en- 
cumbrances should  appear  upon  the  abstract  as  in  other 
classes  of  real  estate. 

Inspection  and  Surv^ey. — In  addition  to  the  ab- 
stract of  title  a  survey  and  local  inspection  are  indispen- 
sable to  security. 

This  inspection  and  survey  should  result  in  ascertain- 
ing the  depth  of  Discovery  Shaft,  and  whether  it  shows  a 
well  defined  crevice  :  whether  the  location  notice  was  duly 
posted  and  what  it  contains  (p.  32) ;  whether  the  stakes 
were  properly  set ;  whether  the  claim  (as  far  as  such  fact 
can  be  fairly  ascertained)  is  laid  so  as  to  cover  the  apex  or 
general  course  of  the  Lode,  and  more  especially  what  shafts, 
tunnels,  prospect  holes,  stakes,  notices,  and  improvements 
indicate  the  presence  of  hostile  claims,  and  if  such  inter- 
vening or  overlapping  hosti'.e  claims  are  found,  their  senior- 
ity or  juniority  should  be  at  once  established. 


KXAMINATIOX    OF   TITl.E.  159 

The  abstract  (at  least  until  patent)  may  show  a  clear 
chain  of  title,  and  may  be  based  on  a  record  senior  to  other 
records  on  the  same  vein,  and  still  the  title  may  be  abso- 
lutely  worthless. — Patterson  v.  Hitchcock,  5  M.  R.  542. 

An  adverse  senior  discovery  may  exist  within  a  few  feet 
of  the  discovery  of  the  claim  under  examination  Every 
hole  or  stake  in  proximity  to  the  claim  should  be  examined, 
its  history  traced,  and  the  possibility  of  danger  from  that 
source  guarded  against. 

Whether  the  annual  labor  has  been  done  must  also  be 
ascertained. 

Such  inspection  having  been  made  and  the  points  pecu- 
liar to  the  title,  a-^  a  mining  title,  being  examined  as  they 
occur,  the  course  of  examination  will  be  as  follows  : 

1 — THE  ABSTRACT. 

The  abstract  should  be  certified  by  the  Recorder  or  by 
some  respectable  abstract  firm,  to  contain  all  deeds  and  in- 
struments filed  or  recorded,  in  the  office  of  the  Recorder 
conveying,  encumbering  or  in  any  manner  affecting  title 
to  the  property  in  question. 

The  abstract,  however,  amounts  to  nothing  more  than 
a  guide  or  memorandum  to  the  attorney  in  his  examina- 
tion. 

Each  deed  and  other  instrument  must  be  inspected  at 
length,  either  by  the  original  or  by  a  certified  copy. 

2— LOCATION  CERTIFICATE. 

The  material  points  to  be  observed  in  the  location  cer- 
tificate are  that  (especially  since  May  10,  1872)  it  contains  : 

1.  The  name  of  the  lode. 

2.  The  names  of  the  locators. 

3.  Tho  date  of  location. 


160  EXAMINATION    OF  TITLE. 

/ 

4.  Such  a  description  as  will  identify  the  claim,  with 
course  and  extent  from  Discovery  as  required  by  G.  S.,  ? 
2399.    See  p.  46. 

5.  That  it  claims  no  greater  Bumber  of  feet  than  was 
allowed  at  date  of  discovery. 

6.  And  in  cases  of  claims  located  before  May  10,  1872, 
that  it  shows  a  sufficient  number  of  locators  to  claim  the 
full  number  of  feet. 

3 — CONVEYANCES. 

A  mine  is  conveyed  by  deed  or  encumbered  by  mort- 
gage the  same  as  other  real  estate. 
The  description  should  contain : 

1.  The  name  of  the  lode. 

2.  If  patented,  the  number  of  survey  lot. 

3.  Mining  district.  County  and  State. 

4.  The  slope  and  name  of  the  mountain  or  gulch. 

5.  Usually  in  proper  conveyancing,  the  number  of  feet 
in  length  and  width  are  inserted  and  sometimes  (especially 
if  the  conveyance  be  of  part  of  a  claim)  their  situation  rel- 
ative to  center  of  Discovery  Shaft. 

The  essential  points  of  such  description  are  the  name 
of  the  lode,  district.  County  and  State. 

Placer  claims  are  usually  described  by  their  numbers, 
or  if  patented,  by  the  survey  lines  or  number  of  the  survey 
lot.  Locations  since  the  Act  of  1879  have  been  named  the 
same  as  lode  claims. 

Each  deed  or  other  instrument  must  be  examined  to 
ascertain : — 

That  it  has  been  signed  by  the  proper  parties. 

That  it  is  under  seal. 


EXAMINATION   OF  TITLE.  161 

That  it  sets  forth  a  consideration. 

That  it  contains  a  sufficient  description  of  the  premises. 
Tliat  it  contains  sufficient  words  of  conveyance, 
'that  no  lien  or  purchase  money  is  therein  reserved. 

Tliat  there  are  no  words  of  condition,  exception,  or 
reservation  l)y  wliich  less  than  a  fee  simple  estate  may  he 
limited,  or  by  which  a  supposed  conveyance  may  be  con- 
strued as  a  mortgage. 

That  each  letter  of  attorney  grants  sufficient  power  to 
sell  and  convey. 

That  each  deed  under  power  ol  attorney  is  executed  in 
conformity  with  such  power,  and  that  the  name  of  the 
principal,  at  least,  appears  in  the  body  of  the  deed,  and  that 
it  is  signed  "  A.  B.  by  C.  D.,  his  attorney  in  fact,"  or  words 
equivalent  thereto. 

That  each  title  bond  or  agreement  to  convey  has  been 
released  unless  a  eonvej'ance  has  been  made  in  conformity 
with  such  bond  or  agreement. 

That  every  mortgage,  trust  deed,  attachment,  miner's 
lien,  certificate  of  levy,  tax  sale,  judicial  sale,  judgment  or 
transcri()t,  has  been  either  properlj-  proceeded  upon  if  title 
is  claimed  under  it;  or,  on  the  other  hand,  satisfied  of 
record  if  it  is  found  in  opposition  to  a  clear  title. 

That  especially  in  sales  nnder  a  trust  deed,  due  publi- 
cation has  been  made  and  all  the  terms  of  such  trust  deed 
complied  with  as  to  time,  place  and  terms  of  sale,  etc.,  all 
'^f  which  should  appear  recited  in  the  deed  made  by  the 
trustee  to  the  purchaser. 

Tliat  every  letter  of  attorney,  deed,  mortgage,  etc.,  has 
been  duly  acknowledged  before  some  proper  officer;  and 
especially  that  prior  to  February  12,  1S74,  each  acknowl- 
edgement by  a  married  woman  has  been  "separate  and 


162  EXAMINATION  OF   TITLE. 

apart  from  and  out  of  the  presence  of"  her  husband,  and 
that  the  "  contents,  meaning  and  effect "  of  the  deed  were 
by  the  officer  "fully  explained  to  her."  The  wife's  signa- 
ture to  deed  conveying  the  husband's  lands,  has  never  been 
required  in  Colorado ;  but  prior  to  February  12, 1874,  where 
the  property  was  held  in  the  wife's  name,  their  joint  deed 
with  her  separate  acknowledgement  was  required.  See  p. 
146. 

After  Acquired  Title.— A  warranty  deed  conveys  to 
the  grantee  any  after  acquired  title  of  his  grantor,  and 
even  a  quit-claim  made  pending  application,  may  carry  the 
patented  title  to  the  grantee. — Crane  v.  Salmon,  41  Cal.  63. 
Bradbury  v.  Davis,  3  M.  B.  398. 

4 — PATENTS. 

lu  case  of  a  patented  claim,  the  land  office  receipt  and 
patent  should  appear  on  the  abstract,  although  the  record- 
ing of  these  papers  is  not  essential.  If  there  be  a  receipt 
but  uo  patent,  the  title  is  still  possessory.  If  there  be  a 
patent  it  carries  the  legal  title  back  to  the  entry,  at  least. 

The  form  of  patent  is  quite  different  from  that  of  a  pa- 
tent for  agricultural  lands,  and  contains  certain  provisions 
as  to  easements,  etc.,  and  also  a  plat  of  the  survey ;  and 
excepts  the  surface  ground  of  any  previous  survey  crossing 
the  line  of  the  lot  conveyed.  It  also  excepts  the  "  claim  " 
of  the  party  who  has  entered  the  interfering  lot.  Tut  this 
plat  purporting  to  show  all  previous  applications  is  not  al- 
ways correct  and  may  not  agree  with  the  stakes  of  the  inter- 
fering surveys  as  found  on  the  ground. 

In  case  of  overlapping  surveys,  too  much  care  cannot 
be  exercised  in  observing  to  what  extent  they  may  cover 
the  vein  of  the  claim.  The  question  of  priority  then  be- 
comes important.  A  junior  patent  upon  a  senior  entry  is 
certainly  superior  to  a  senior  patent  with  a  junior  entry  ; 


EXAMINATION   OF   TITLE.  163 

that  the  patent  even  relates  back  to  the  date  of  the  appro- 
val of  survey  is  the  general  opinion  of  the  profession.  The 
idea  that  it  may  relate  back  to  the  discovery  [as  against 
adverse  thud  parties]  is  not  tenable,  but  in  any  event  it  is 
essential  to  examine  behind  the  patent,  back  to  the  discov- 
ery, on  account  of  the  possibility  of  liens,  which  are  not  di- 
vested by  the  patent. 

The  plat  contained  in  the  body  of  each  patent,  examined 
in  connection  with  the  description  in  the  same  instrument, 
is  intended  to  show  just  what  ground  within  the  exterior 
lines  of  the  survey  lot  goes  to  the  patentee.  Such  ground 
is  colored.  The  ground  excepted  because  previously  grant- 
ed by  prior  patents  or  eliminated  by  prior  approved  surveys, 
is  not  colored.    Seep.  79. 

But  this  plat,  as  observed  above,  although  transcribed 
from  the  files  of  the  Surveyor  General's  office  is  not  always 
correct  [on  account  of  mistakes  of  deputies  in  the  field]  and 
ought  not  to  dispense  with  the  precaution  of  inspecting  the 
premises. 

Where  a  patent  has  been  issued  there  is  no  necessity 
fora  strict  examination  of  the  location  certificate  or  of  the 
various  acts  of  location.  It  cures  all  defects  incident  to  the 
location  as  well  as  any  break  in  the  chain  of  title  prior  to- 
the  application.  It  does  not  however  divest  liens,  and  it 
may  be  possible  for  a  party  liaving  a  claim  to  an  interest  in 
the  possessory  title  to  prove  an  equity  such  as  would  make 
the  patentee  trustee  of  the  title  for  his  use.  Nor  does  it 
dispense  with  the  importance  of  a  surface  examination  to 
see  that  the  corners  agree  with  the  plat  and  that  the  survey- 
lot  substantially  encloses  the  vein. 

5 — LIENS  AND  JUDICIAL  PROCEEDINGS. 

A  certificate  should  then  be  had  from  the  Clerk  of  the 
District  Court  of  the  proper  County,    certifying  that  there 


164  EXAMINATION   OF  TITLE. 

are  uo  judgments,  transcripts,  attachments  or  other  liens 
of  record  in  such  court  against  the  property  or  appearing 
against  the  names  of  any  of  the  present  or  former  owners 
during  such  time  as  the  abstract  may  show  it  was  liable  to 
lien  through  each  particular  owner.  And  that  there  are  no 
suits  pending  affecting  such  property  or  the  title  thereto, 
either  in  such  District  Court,  or  in  Supreme  Court  on  error 
or  appeal.  If  there  are  suits  or  liens  he  will  so  certify,  with 
reference  to  term  and  docket  whereupon  they  should  be 
examined  by  inspection  of  the  original  records,  with  the 
same  particularity  as  the  deeds  in  the  abstract,  so  that  it  may 
be  seen  to  what  extent  they  encumber  the  premises  or 
threaten  the  quiet  e-jjoyment  thereof;  and  if  such  suits  or 
liens  have  been  satisfied  or  settled,  it  should  be  made  pliin- 
ly  so  to  appear  upon  the  records. 

FOEM  OF  clerk's  CERTIFICATE. 

State  of  Colorado,        i 

County  of  Clear  Creek,  f 

I,  Horace  IT.  Atkins,  Clerk  of  the  District  Court  in  and  for 
said  County,  do  hereby  certify  that  there  are  no  judgments,  at- 
tachments, transcripts,  or  other  liens,  appearing  of  record 
against  (here  insert  name  of  each  party  who  has  owned  an  inter- 
est within  six  years),  or  any  of  them  in  said  court  williinsix 
years  last  past.  And  that  there  are  no  suits  pending  in  said 
Coiut  claiming  or  affecting  title  to  the  Edclmira  Lode  Mining 
'lairn,  in  said  County.  Witness  my  hand  and  the  Seal  of  said 
Court,  this  12th  day  of  April,  A.  U.  1888. 

[I.,  s.]  Horace  H.  Atkins,  Clerk. 

A  like  Certificate  should  be  had  from  the  County  Judge 
and  from  the  Clerk  of  the  Supreme  and  United  States 
Courts. 

The  lien  of  a  judgment  (Code  ?  232)  is  confined  to 
those  cases  where  a  transcript  is  filed  in  the  Recorder's 
office  and  expires  six  years  after  date  of  its  original  entry. 

There  alwaj^s,  however,  exists  a  possibility  of  lien  not 
aipeariug  on  the  abstract  {Laughlin  v.  Hawley,  9  Colo.  170) 


EXAMINATION   OF  TITLK.  165 

but  which  shouUl  disclose  itself  upon  the  Clerk's  certificate. 
There  may  also  exist  an  unrecorded  miner's  lien  {See  p.  143) 
or  a  lien  in  favor  of  the  State  on  an  audited  account  (G.  S. 
?  1390)  or  for  fine  and  costs  in  a  criminal  case,  or  against 
the  surety  on  a  criminal  bond.     G.  S.  ^  g  277,  278. 

If  from  the  abstract  or  any  of  the  above  certificates 
there  appears  to  have  been  a  judicial  sale,  probate  sale,  tax 
or  other  official  sale,  the  whole  proceedings  from  the  sum- 
mons, petition,  assessment  or  other  starting  point,  must  be 
examined  as  to  their  validity  at  all  stages,  up  to  their  con- 
summation by  sheriflF's  deed  or  otherwise. 

G.— PARTIES  IN    POSSESSION. 

If  parties  are  in  actual  possession,  claiming  adversely 
to  the  grantor,  or  claiming  under  him  as  lessees,  their  pos- 
session is  an  assertion  of  their  claim  whatever  it  may  be  of 
which  the  purchaser  must  take  notice  at  his  peril. 

7 — CONCLUSION.— DUTY   OF  COUNSEL. 

If  from  the  abstract,  or  from  any  of  the  certificates,  or 
from  inspection  of  any  deed,  instrument  or  record  in  the 
chain  of  title;  or  as  the  result  of  his  client's  inspection  and 
survey  of  the  premises ;  or  from  any  other  source,  the  attor- 
ney is  informed  of  any  adverse  title,  or  any  outstanding 
trust  or  adverse  interest,  or  of  any  missing  conveyance  in 
the  chain  of  title,  or  of  any  serious  defect  in  the  body  or 
acknowledgment  of  any  instrument,  of  such  a  nature  as  to 
invalidate  the  title— the  true  condition  of  such  title  sliould 
then,  with  due  secrecy,  be  expressed  to  the  client.  And 
when  the  attorney  has  satisfied  his  own  mind  upon  all  such 
questions  of  law  as  may  have  arisen  during  the  course  of 
his  examination,  the  client  has  a  right  to  be  advised  of  all 
points  which  remain  in  doubt,  and  of  any  contingencies 
which  may  threaten  the  quiet  enjoyment  or  would  obstruct 


1 66  ALIENS. 

a  sale  of  the  premises;  and  of  all  steps  which  if  presently 
taken  may  avoid  such  conditions  and  perfect  the  title,  so 
that  the  true  value  of  the  title  in  law  shall  be  represented 
to  the  client,  that  is,  the  intending  purchaser.  For  in  all 
cases  of  examination  of  title,  the  attorney  should  be  selected, 
or  at  least  assented  to,  by  the  purchaser,  if  it  be  a  sale ;  by 
the  lender  of  money,  if  it  be  a  mortgage  ;  because  from  the 
necessity  of  the  case,  he  acts  in  the  interest  of  the  pur- 
chaser and  of  the  lender,  and  not  in  that  of  the  grantor  or 
of  the  mortgagor ;  the  charge  for  his  examination  should  be 
made  against  the  same  side ;  the  charge  for  the  conveyance, 
on  the  other  hand,  is  by  custom  made  against  the  vendor. 


ALIENS. 


Declaration  of  Intention. — One  who  has  declared 
his  intention  to  become  a  citizen  of  the  United  States  may 
Iccate,  enter  and  patent  a  claim  the  same  as  a  citizen.  No 
fixed  period  of  previous  residence  is  required  before  mak- 
ing such  declaration. 

Resident  Aliens.— Section  27  of  Article  2,  of  the 
Constitution  of  (  olorado,  provides  that  aliens  who  are  bona 
fide  residents  may  acquire  and  hold  property  the  same  as 
native-born  citizens;  while  Chapter  3  of  the  General  Stat- 
utes places  all  aliens  on  an  equal  footing  with  citizens. 

This  legislation,  however,  cannot  affect  their  relations 
to  the  public  domain  of  the  United  States. 

A  resident  alien  may  acquire  and  hold  patented  claims 
by  perfect  tenure ;  but  as  to  non-resident  aliens  ( which 
might  include  all  corporations  organized  outside  of  the 
United  States)  there  is  a  want  of  parity  in  their  status 


ALIENS.  167 

und(y:  the  Constitution  and  the  Statute  as  above  indicated, 
to  the  extent  that  the  tenure  of  the  former  only,  is  guar- 
antied. 

Naturalization. — It  has  been  frequently  decided  that 
the  act  of  Naturalization  is  retroactive,  so  that  if  an  alien 
has  located  a  claim  and  afterwards  become  naturalized  his 
location  would  be  good  from  its  original  date.— OA/erman  v. 
Baldwin,  6  Wall.  122  ;  Copp.  M.  L.  176. 

But  naturalization  after  adverse  rights  had  intervened 
might  not  have  this  effect. 

There  is  a  common  impression  that  the  naturalization 
of  the  father  operates  to  make  citizens  of  all  his  children 
■who  came  to  the  United  States  under  eighteen  years  of  age ; 
but  this  is  the  case  only  as  to  such  children  who  were 
under  that  age  at  the  date  of  the  father's  naturalization 
papers.— E.  S.  §  2172. 

Cannot  Ijocate  or  Patent. — An  alien  cannot  locate 
a  mining  claim.  By  both  the  Act  of  1866  and  1872  Con- 
gress restricts  this  privilege  to  citizens  of  the  United  States 
and  persons  who  have  declared  their  intentions  to  become 
such.— GoWen  Fleece  Co.,  v.  Cable  Co  ;  1  M.  E.  120.  Rosenthal 
V.  Ives,  12  Pac.  901.     Lea  Boon  v.  Tesh,  63  Cal.  45. 

And  as  he  cannot  locate  neither  can  he  procure  patent. 
Strict  proof  of  citizenship  is  required  by  the  Land  Office  in 
the  case  of  every  application.  Neither  can  he  support  an 
adverse  claim. — 1  Copp.  45. 

Attempting  to  Hold  by  Purchase. — As  an  alien 
can  neither  lawfully  locate  or  patent,  nor  maintain  an 
adverse  claim  it  would  seem  to  follow  that  ho  could  not 
hold  by  purchase.  That  he  cannot  is  held  in  Tibbitts  v. 
Ah  Tong,  4  M(mt.,6ZG,  and  Chapman  v.  Toy  Long,  1  M.  E.,  497. 
In  the  latter  case  it  was  ruled  that  aliens  attempting 
to  work  a  mining  claim  will  be  enjoined,  notwithstauding 


I 


1 68  ALIENS. 

the  fact  of  their  entry  in  all  other  respects  being  seqior  to 
and  better  than  that  of  the  opposing  parties ;  that  the  actual 
possession  of  the  ground  by  Chinese  did  not  prevent  its 
being  located  by  citizens  not  in  possession. 

It  has  on  the  contrary  been  decided  in  Ferguson  v. 
Neville,  Gl  Cal.  356,  that  an  alien  may  hold  by  purchase  as 
against  another  claimant,  on  the  doctrine  that  only  the 
State  could  enforce  a  forfeiture,  but  that  decision  on  this 
point  is  explained  away  in  Lee  Doon  v.  Tesh,  68  Cal.  43 ; 
and  its  holding  is  inconsistent  with  the  policy  of  the  Gov- 
ernment, which  throws  the  entire  mineral  public  domain 
open  to  the  citizen  prospector  and  to  the  current  of  author- 
ity on  like  cases  relating  to  the  public  domain. 

Intermediate  Holding  by  Alien. — Where  an  alien 
and  a  citizen  make  a  joint  location  the  deed  of  the  two 
locators  conveys  perfect  title. — North  Noonday  Co.  v.  Orient 
Co.,  9  M.  R.  530. 

And  when  an  alien  has  made  a  location  in  all  respects 
lawful  except  as  to  this  matter  of  alienage  and  conveys  to 
a  citizen,  such  location  is  valid  against  all  whose  rights  did 
not  intervene  before  such  transfer. — Ibid. 

When  the  claim  is  held  by  purchasers  the  citizenship 
of  the  original  locators  is  presumed. — Garfield  Co.  v.  Ilam- 
mar,  8  Pac.  153.  And  the  conveyance  by  an  alien  as  an  in- 
termediate grantor  passes  the  title  of  the  original  locator. — 
Ferguson  v.  Neville,  61  Cal.  356. 

The  I^atc  Alien  Acts. — The  Alien  Act  of  Congress 
of  March  3,  1387,  does  not  apply  to  the  States,  and  the  Act  of 
the  Colorado  Legislature  of  1887  (Se.ss.  Laws,  p.  24)  does  not 
affect  mines  or  mining  companies. 


MINING  CORPORATIONS.  DOMESTIC.  169 

MINI>'G  lOllPOKATIONS,  DOMESTIC. 


Any  three  or  more  persons  arc  authorizcil  to  file  tlicir 
certificate  of  incorporation  under  the  general  Incorporation 
Act  (G.  S.  g  237-365),  for  purposes  of  mining  or  construc- 
tion of  ditches  or  Qumes;  and  to  run  tunnels.  For  fee  on 
filing   seep.  178. 

The  term  of  existence  of  such  corporations  cannot  ex- 
ceed twenty  years.     (G.  S.  ?  238.) 

Any  such  Company  may  issue  stock  in  payment  for 
mines,  such  stock  to  bo  treated  as  paid  up  stock.  (G.  S.  § 
251  and  321.) 

No  personal  liability  is  imposed  upon  stockholders  for 
debts,  except  to  the  extent  of  unpaid  stock  held  by  them. 
(G.  S.  ^247  and  258.)  But  in  certain  cases,  trustees  or  officers 
may  become  liable  for  violation  of  the  provisions  of  the 
cori)oration  Act  for  failure  to  make  and  record  au  annual 
report  (G.  S.  252),  and  declaring  fraudulent  dividends.  (G. 
S.  ?  253. 

ARTICLES  OF  INCOKPORA.TION;    MINING   COMPANY. 

Wni'REAs,  Genrrje  P.  Gardner,  Charles  D.  Peck  and  Henry 
Dcrxt,  of  the  (lounty  of  Hinsdale,  State  of  Colorado,  liavc  a.«sori- 
atcd  themselves  tofiether  for  p\irposes  of  infioriioration  under  the 
General  Incorporation  Acts  of  the  State  of  (>)lorftdo.  they  do 
tlieiefore  make,  siijn  and  acknowledjie  these  Dnplicate  Certifi- 
cates in  writinp;,  which  wlion  filed,  shall  constitute  the  Articles 
of  Incorporation  of  The  Flat  Silver  Mining  Company. 

Artici.eI.— The  name  of  said  company  shall  be  "The  i^'to/ 
Silver  Mining  Company. 

Artici.e  2.— fhe  objects  for  whicli  said  company  l.s  created 
arc  to  acquire  and  operate  mines  of  silver-bearing  ore  in  said 
County  of  Ilinsdiile,  aud  to  do  all  things  incident  to  the  general 
object  of  mining. 

Akticlf.  3.— The  term  of  existcncc^of  s^id  Company  shall  be 
twenty  year.s. 


170  MINING  CORPORATIONS,  DOMESTIC. 

Article  4.— The  capital  stock  of  said  Company  shall  be  One 
Million  Dollars,  divided  into  ten  thousand  shares  of  one  hun- 
dred dollars  each. 

Article  5. — The  number  of  Directors  of  said  Company  shall 
be  three,  and  the  names  of  those  who  shall  manage  the  affairs  of 
the  Company  for  the  first  year  of  its  existence  are  Oeorge  F, 
Gardner,  Charks  D.  Peck  and  Henry  Deist. 

Article  6.— The  principal  office  of  said  Company  shall  be 
kept  at  Lake  City,  in  said  County,  and  the  principal  business  of 
said  Company  shall  be  carried  on  in  said  Connty  of  Hinsdale. 

Article  7.— The  stock  of  said  Company  shall  be  non-assess- 
able. 

Article  8.— The  Board  of  Directors  shall  have  power  to 
make  such  prudential  By-Laws  as  they  may  deem  proper  for  the 
management  of  the  aftairs  of  the  Company,  not  inconsistent 
with  the  laws  of  this  State,  for  the  purpose  of  carrying  on  all 
kinds  of  business  within  tlie  objects  and  purposes  of  such  Com- 
pany. 

In  witness  whereof,  the  said  incorporators  have  hereunto  set 
their  hands  and  seals  this  first  day  of  January.  A.  D.  1887. 

George  V.  Gardner,     [Seal. 
Ch.vrlek  D.  Beck,  [Seal 

Henry  Derst.  [Seal. 

St.*.te  of  Color  a  do        \ 
County  of  Hinsda'e,  j 

I,  George  W.  Frfinklin,  a  Notary  Public  in  and  for  said 
County,  do  hereljy  certify  that  George  F.  Gardner.  Charles  D. 
Peck  and  Henry  Df^rsi  who  arc  personally  known  to  me  to  be 
the  same  persons  described  in,  and  who  executed  the  within 
Duplicate  Articles  of  Incorporation,  appeared  before  me  this  day 
and  personally  acknowledged  that  they  signed,  sealed  and  de- 
livered the  same  as  their  free  and  voluntary  act  and  deed. 

Witness  my  hand  and  Notarial  Seal  this  first  day  of  Janu- 
ar>',  A.  D.  1887. 

George  W.  Franklin,  Notary  Publie.    [Seal.] 

The  first  seven  articles  iu  the  above  form  contain  all 
the  statutory  requirements.  Article  8  in  regard  to  the  by- 
laws, is  necessary  if  it  is  intended  that  the  directors  instead 
of  the  stockholders  shall  make  tlie  by-laws.     (G.  S.  §  243.) 

One  of  said  duplicates  is  to  be  filed  with  the  Recorder 
of  the  proper  county,  and  one  with  the  Secretary  of  State, 
and  if  the  business  is  to  be  carried  on  in  more  than  one 
county,  the  word  duplicate  shouhl  not  be   used,  as  there 


MINING   CORPORATIONS,  DOMESTIC.  |7I 

must  bo  an  original  for  each  county  as  well  ai  for  the  Sec- 
retary of  State.  The  proper  proof  of  corporate  existence  is 
by  certified  copy  from  the  oflioe  of  the  Secretary  of  State. 
The  Chapter  concerning  corporations  provides  for  assess- 
ments upon  shares,  where  by  the  charter  the  stock  is  made 
assessable,  and  the  Statute  requires  that  whether  the  stock 
shall  bo  assessable  or  non-assessable  shall  be  stated  in  the 
above  Articles;  and  each  certificate  of  stock  "shall  have 
plainly  printed  on  the  face  tliereof  ihe  word  'assessable' 
or  'non-assessable,'  as  the  case  may  be." 

Where  it  is  desired  to  transact  part  of  the  business  out 
of  the  State,  the  certificate  should  so  state. 

F\)rin:  Article  9— .V  part  of  the  business  of  said  Company- 
shall  be  carried  on  in  /iokley.  County  of  Luzerne.  Commonwealth 
of  Pfnn-if/liianii.  and  the  principal  office  of  said  Company  out  of 
the  State  shall  be  at  said  BcvUy,  at  which  office  meetings  of 
Directors  may  be  held. 

The  number  of  Directors  or  Trustees  must  be  not  less 
than  three,  and  not  more  than  nine. 

OBGANIZATION  MEETING. 

Record  of  first  meeting  of  the  Board  of  Directors  of  The  Fiat 
Silvtr  Mining  Compaixy,  at  Lake  City,  Colorado,  January  7,  1887. 

At  a  meeting  of  the  persons  named  in  the  articles  of  said 
Company,  there  being  present  Q  o.  F.  Gardner,  Charles  D.  Peck 
and  Henry  Deist: 

On  motion  George  F.  Gardner  was  elected  Chairman,  and 
Charlex  D.  Peck,  Secretary  pro  tern. 

On  motion  the  articles  of  incorporation  as  filed  in  the  oflSce 
of  the  Secretary  of  State  and  in  the  office  of  the  Countv  Clerk  of 
Hinsdale  county,  were  accepted  as  the  articles  of  "incorpora- 
tion, or  charter  of  said  company. 

On  ballot  taken  G'orge  F.  Gardner  was  elected  President  of 
the  Company.  Chirlea  D.Peek  was  elected  Vice-President.  Henry 
Dsrst  was  elected  Treasurer,  Willinm  R  >wan  was  elected  Secre- 
tary, and  BenJ,  B.  Lawrence  was  elected  Superintendent. 

On  motion  the  following  By-Laws  were  adopted  : 


1  72  MINING  CORPORATIONS,  DOMESTIC. 


■•"BY-LAWS. 
I— OFFICEKS. 

The  officers  of  this  Company  shall  consist  of  a  President, 
Vice-President,  Secretary,  Treasurer  and  Superintendent,  who 
shall  be  chosen  by  the  Directors  at  their  first  meeting  following 
the  annual  meeting  of  the  Stockholders  in  each  year.  Tliey  shaii 
be  elected  from  the  Board  of  Directors,  except  tlie  Secretary  and 
Superintendent,  who  may  or  may  not  be  Directors.  Said  oificers 
shall  hold  tlieir  respective  ottices  until  their  succes-sors  are  ap- 
pointed and  enter  upon  tlie  duties  of  tlieir  offices.  A  majority  of 
the  Board  of  Directors  must  be  residents  ol  Colorado.  Vacancies 
among  the  Directors  may  be  tilled  at  any  meeting  of  the  Board 
of  Directors,  by  ballot. 

II— DUTIES  OF  OFFICERS. 

Prexiden'.— It  shall  be  the  duty  of  the  President  to  preside  at 
all  meetings  of  the  Directors,  and  to  sign  all  bonds,  deeds,  agree- 
ments or  other  instruments  in  writing,  made  or  entered  into  by 
or  on  behalf  of  the  corporation  ;  to  sign  all  certificates  of  stock, 
and  all  orders  for  money  on  the  Treasurer,  and  in  general,  per- 
form all  acts  incident  to  his  office. 

Vice- Prexident.— It  shall  be  the  duty  of  the  Vice-President 
to  perform  all  such  functions  as  belong  to  the  office  of  the  Presi- 
dent, in  the  absence  of  the  IMesident. 

Secretary.— The  Secretary  shall  give  due  notice  of  all  meetings 
of  stockholders,  and  of  the  lioard  of  Directors  ;  shall  prepare  and 
keep  proper  books  of  record  and  of  account  for  the  business  of 
the  Company,  and  such  other  books  as  the  Directors  may  pre- 
.scribe.  He  shall  countersign  and  register  all  certificates  of 
stock,  and  otlicr  documents  requiring  the  signature  of  the  Presi- 
dent, attaching  tlie  corporate  seal  of  the  Company  to  all  instru- 
ments requring  seal,  and  perform  all  such  other  duties  as  are  in- 
cident to  Ills  office  A  suitable  compensation,  to  be  determined 
by  the  Directors,  shall  be  allowed  the  Secretary  for  his  services, 
lie  shall  be  the  custodian  of  the  corporate  seal. 

Treasurer. — The  Treasurer  shall  be  the  custodian  of  the 
funds  until  the  same  be  disposed  of  by  order  of  the  Board  of 
Directors.  He  sliall  give  bond  satisfactory  to  the  Board  of  Direc- 
tors, for  the  faithful  performance  of  liis  duties.  No  money  shall 
be  paid  out  by  tlie  Treasurer  e.xco()t  on  the  order  of  the  President 
or  Superintendent,  countersigned  by  the  Secretary. 

Svpermtendent  —Tlie  Superintendent  shall  have  control  of 
the  working  and  developing  of  the  Company's  mining  property; 
shall  report  to  the  Board  of  Directors  for  their  approval,  all  con- 

*NoTE.— The  above  By  I^aws  will  bo  found,  in  general,  suffi- 
cient; but  each  ]5y-La\v  sliould  be  reviewed  and  such  changes 
made  as  may  be  needed  to  cover  special  plans  of  the  incorpora- 
tors. 


MINING  CORPORATIONS,  DOMESTIC.  173 

templatcd  work,  and  after  such  approval,  shall  have  full  power 
to  contract  saiil  work.  .Ml  expenses  incurred  by  the  Superinten- 
dent in  the  working  and  inanasement  of  the  Company's  prop- 
erty sliall  he  Ijorne  Ity  the  Company.  A  suitable  compensation, 
to  be  determined  by  the  iioard  of  iJirectors,  shall  be  allowod  him 
for  his  services. 

Ill— BOARD  OF  DIRECTORS. 

The  Hoard  of  Directors  shall  consist  of  three  members, 
always  including  the  President,  Vice  President  and  Treasurer. 
It  shall  be  the  duty  of  the  Hoard  to  exerci-e  a  general  supervis- 
ion over  the  aflairs  of  the  Comimuy  ;  to  receive  and  pass  upon 
the  reports  of  the  Secretary,  Treasurer  and  Superintendent;  to 
audit  all  bills  and  accounts  against  the  Company,  and  direct  the 
Secretary  in  coirespondeucc. 

The  Board  of  Directors  shall  cause  its  officers  to  make  a  full 
exhibit  of  their  several  <lei)artmi'nts  and  to  prepare  reports  for 
submission  to  the  annual  meeting  of  .stockholders. 

The  Roard  of  Directors  shall  meet  at  such  times  as  they 
shall  from  time  to  time  determ'ne.  and  a  meeting  of  the  Board 
may  at  any  time  be  called  by  the  President  or  any  two  members 
of  the  lioard.  by  causing  personal  notices  to  be  served  upon  the 
Directors  at  least  one  day  before  the  date  of  such  proi)osed  meet- 
ing. Two  of  the  Directors  shall  consti  ute  a  quorum  for  the 
transaction  of  business.  All  directors  and  officers  must  be  stock- 
holders. 

IV— stockholders'  meetings. 

The  first  annu.al  meeting  of  the  Company  .shall  bo  held  at 
the  ollice  of  the  (.'ompany  in  I>ake  (Mtv,  at  ten  "o'clock  a,  .m  ,  on 
the  second  Tuesday  in  .lanuary,  A.t)  lhS7.  and  on  the  same 
Tuesday  of  each  succeeding  year.  If  omitted,  the  Directors  shall 
hold  over  until  theirsucccssors  are  appointed.  Special  meetings 
may  be  called  by  the  Moard  of  Directors,  or  by  one-tenth  in 
amount  of  all  thestoek  field  In  addition  to  anv  published  no- 
tice reiiuircd  by  law,  printed  notice  to  each  stockholder  shall  bo 
mailed  at  least  thirty  days  previous  to  each  meeting  (except 
adjourned  meetings)  and  the  object  of  the  same  stated.  Stock- 
holders may  be  represented  by  proxies,  which  must  be  exhibited 
for  inspection  to  the  meeting,  before  being  allowed  to  vote. 

V — certificates  of  shares. 

The  subscribers  to  the  capital  stock  of  this  Companv  shall  be 
entitled  to  certiliciites  of  their  shares,  duly  signed  by  tlie  Presi- 
dent and  countersigned  by  the  Secretary.  The  certificates  of 
stock  shall  be  numbered  and  registered  as  they  are  issued. 
Transfersof  stock  shall  only  be  made  on  the  books  of  the  Com- 
pany, either  in  person  or  by  attorney,  and  the  posse.ssion  of  stock 
shall  not  be  regarded  as  evidence  of  ownership  of  the  same,  un- 
less it  appears  upon  the  stock  books  (if  the  Companv  that  said 
certificate  was  issued  or  duly  transferred  to  the  holder  of  the 
same. 


174  MINING   CORPORATIONS,  DOMESTIC. 


VI.— DEBTS. 

No  debt  shall  be  contracted  against  the  Company  except  by 
order  of  the  Board  of  Directors. 

VII.— DIVIDENDS. 

Dividends  shall  be  made  not  in  excess  of  the  net  earnings  of 
the  Company  at  the  close  of  every  fiscal  year,  which  .shall  be  on 
the  thirty-first  day  of  December  of  every  year ;  or  oftener  as 
the  Board  of  Directors  may  .see  fit . 

VIII. — CORPORATE  SEAL. 

This  Company  adopts  as  its  corporate  seal,  the  device  de- 
scribed as  follows  :  A  pick  and  shovel  crossed,  surrounded  by 
the  name  of  the  Company. 

IX  .—AMENDMENTS. 

These  By-Laws  may  be  changed,  amended  or  revoked  at  any 
time,  by  a  two-thirds  vote  of  the  Board  of  Directors. 

The  Charter  and  By-Laws  being  adopted,  and  the 
oflSicers  elected,  the  organization  of  the  corporation  is  com- 
plete, and  the  minutes  proceed  to  note  business  as  it  may 
be  transacted. 

Reports  and  Certificate'*  Required. — After  pay- 
ment of  the  last  installment  of  capital  stock  the  President 
and  a  majority  of  the  Board  of  Directors  are  privileged  to 
file  a  certificate  in  the  office  of  the  Secretary  of  State,  as 
follows : 

certificate  of  stock  paid  in. 

State  of  Colorado,        * 
County  of  Hinsdale,  P**' 

The  undersigned,  Geo.  F.  Gardner,  President, and  Charles  D. 
Peck,  and  Henry  Derst^  Directors,  constituting  a  majority  of  the 
Directors  of  The  FM  Silver  Mining  Company,  do  hereby  certify, 
in  accordance  with  .Section  248  of  the  General  Statutes  of  said  State 
that  the  amount  of  the  Capital  Stock  of  said  Company,  as  fixed 
and  limited  by  their  Articles  of  Incorporation,  is  S1,000,0(KJ,  and 
that  the  whole  amount  of  said  stock  has  been  paid  in.  Witness 
our  hands  this  Uh  day  of  February,  A.  D   1837. 

Geo.  F.  Gardner,  President. 

Charles  D.  Peck,  Director. 

Henry  Derst,  Director. 


MINING   CORPOUATIONS,  DOMESTIC.  175 


Btatk  of  CoLonADo,        I 
County  of   Hinsdale,   J 

Geo.  F.  Gardner,  Ciarles  D,  Peck  and  Henri/  Demi  being 
duly  Bworn,  sjiy  that  they  arc  the  officers  named  in  the  foregoing 
certificate,  and  constitute  a  majority  of  the  IJoard  of  Directors  of 
Baid  Company  ;  tluit  they  have  lieard  said  Certificate  read  and 
know  the  contents  thereof,  and  that  the  matters  and  things 
therein  stated  are  correct  and  true. 

Geo.  F.  Gardner. 
Charles  D.  Peck. 
Henry  Dei'-st. 
Sworn  and  subscribed  before  me  this  ith  day  of  Fe'truary, 
A.  D.  18a7.  Gko.  W.  Franklin,  N.  P.    [Seal.] 

A  copy  of  said  certificate  is  also  to  be  filed  ia  the  Re- 
corder's office  of  each  county  where  business  is  done. 

The  filing  of  such  certificate  is  not  compulsory,  but  if 
filed  relieves  from  any  pcrsou.xl  liability  in  case  of  failure 
to  file  the  annual  certificate  found  in  the  next  form. 

The  annual  certificate  is  required  from  every  company 
in  form  substantiallj'  as  follows  : 

annual  certificate. 

State  of  Colorado,        ) 
County  of  Hinsdale,  j 

Know  all  I\Ien  by  Tiiesk  Present.s,  That  the  amount  of  the 
Capital  Stock  of  The  Fiat  6Vvcr  Mininy  Company,  a  corporation 
orgiiuizcd  inider  the  laws  of  said  State,  is  Sl.OOO.OlK),  of  which 
amount  S<)r)U,(i(t(i  has  been  paid  in.  The  amount  of  the  existing 
debts  is  S40,000.  (Tnsert  schedule  of  items.)  Witness  the  Cor- 
porate name  and  Seal  of  said  Company,  at  the  hand  of  Geo.  F. 
Gardner  its  President,  this  fir.'it  day  of  February,  A.  D.  1887. 
[seal.]  The  Fiat  Silver  Mining  Company, 

Geo.  F.  Gardner,  President. 
State  of  Colorado,       ) 

County  of  Hinsdale.  J 

Oeorfje  F.  Gardner  being  duly  sworn  saith,  that  he  is  Preti- 
dent  of  the  above-named  Company ;  that  he  has  heard  read  the 
foregoing  Certificate  and  knows  the  contents  thereof,  and  that 
the  matters  and  things  therein  stated  are  correct  and  true. 

Geo.  F.  Gakunek. 

Sworn  and  subscribed  before  me  this  1st  day  of  February  A. 
D.  1887.  George  W.  Fkankhn,  N.  P.    [seal.] 

Such  report  should  bo  filed  within  60  days  from  the  first 
day  of  January.     G.  S.  ?  252. 


176  FOREIGN  CORPORATIONS. 

In  either  form,  where  the  stock  ]ias  been  paid  up  by 
purchase  of  the  mine,  the  certificate  must  so  state. — G.  S. 

The  Secretary  may  verify  it  instead  of  the  President, 
but  the  President  alone,  it  seems,  can  sign  it.  It  is  filed  in 
the  Recorder's  oflice  only.  Neglect  of  filing  imposes  per- 
sonal liability  on  the  Directors. 

ARTICLES   OF   ASSOCIATION;   DITCH   COMPANY. 

Preamble— Same  as  page  1G9. 

Article  1.— The  name  of  said  Company  shall  be  "The 
Deluge  Ditch  Company." 

Article  2.— The  objects  for  which  said  Company  is  created 
are  to  construct  a  Ditch,  and  keep  and  maintain  the"  same  from 
the  stream  known  as  the  Roaring  Fork  of  the  Grand,  tapping 
such  stream  at  a  point  about  one-cjuarter  mile  above  the  Jones 
Ranch,  and  about  one  hundred  yards  below  Eagle  Cliff;  and  fifty 
feet  N.  E.  from  lone  pine  tree  blazed  D  1).,  the  line  of  said  ditch 
running  thence  (give  course  and  distance  by  survey  if  possible,  so 
as  to  describe  "  the  line  of  said  ditch  as  near  as  may  be").  The 
water  of  said  ditch  to  be  used  and  sold  for  placer  mining. 

Article  7— The  stock  of  said  Company  shall  be  asses.'^able, 
upon  majority  vote  at  stockholders'  meeting,  as  required  by  law. 

Articles  3,  4,  5,  C,  8  and  'J  and  acknowledgment,  same  form 
as  on  page  170. 

The  stream  tapped,  head  of  ditch,  line  of  ditch  and 
intended  use  of  water  must  always  be  stated. 

Any  surplus  water  they  are  compelled  to  keep  for  sale, 
at  rates  fixed  by  County  Commissioners. 


FOREIGN  CORPORATIONS. 


By  Sections  2G0-263  of  the  General  Statutes  in  force 
since  1877,  corporations  organized  or  chartered  outside  the 
State  of  Colorado  are  placed  under  exact  and  peculiar  re- 
strictions. 

They  are  required  before  they  are  permitted  "to  do 
any  business  in  this  State,"  to  make  and  file  duplicate  cer- 
tificates, signed  by  the  President  and  Secretary,  duly 
acknowledged,  of  which  the  following  is  a  correct  form  : 


FOREIGN  CORPORATIONS.  177 

State  of  Nkw  York,    • 
County  of  ^'ew  York  \^- 

Know  ALL  Mr.N  hv  Tukse  Trksknts,  That  the  Rcmnnetizf.d 
Sili-er  Min  no  C"Tnp/in>/,"  a  corporation  organized  under  the 
laws  of  said  State,  doth  lierel)y  designate  that  the  "i)rincipal 
phicc  where  the  business  of  such  corporation  shall  bo  carried  on 
in  the  State  of  C(»lorado,"  is  iSid'cr  Cliff,  in  the  County  of  Custer, 
Btate  of  Colorado,  and  that  Jcxie  )Vfn'r,  residing  at  said  princi- 
pal iilace  of  business,  is  the  authorized  agent  of  said  Company, 
upon  whom  process  may  be  served.  Witness  the  Corporate  Name 
ftiid  Seal  of  said  Company,  and  the  signatures  of  its  President  an^ 
Secretary,  this  first  day  6i  Jul}/,  A.  L).  1.S88. 

Remonetized  Silver  Mining  Company, 
[Seal.)  Huste/l  Sar/e.  President. 

Cyrus  ^Y.  Field,  Secretary. 
Statk  of  New  York,     | 
County  of  New  York.^'^-  . 

I,  Herbert  E.  Dickson  (19o  Uroadway),  Commissioner  of 
Deeds  of  the  State  of  Colorado,  duly  (!ommissioned  and  sworn,  in 
and  for  said  County,  do  hereby  certify  that  Russell  Sne/e,  Presi- 
dent, and  C.iiruH  *  Field,  Secretary  of  the  within  named  corpora- 
tion, who  are  personally  known  to  me  to  be  such  President  and 
Secretary  of  said  Corporation,  personally  appeared  before  me  this 
day.  and  acknowledged  the  within  Instrument  (in  duplicate)  to 
be  their  free  and  voluntary  act  and  deed,  and  the  free  and  volunta- 
vr  act  and  deed  of  said  corporation.  Witness  mv  hand  and  offi- 
cial Seal  this  1st  day  of  July,  A.  D.  1SS8.  Herbert  E  Dickson. 
[seal.]  Commissioner  for  Colorado. 

One  copy  of  the  above  instrument  must  be  filed  with 
the  Secretary  of  State,  and  one  in  the  office  of  the  Recorder 
of  the  proper  county. 

G.  S.  Section  260,  requiring  the  above  certificates  has 
been  construed  as  mandatory,  and  it  is  intimated  that  the 
acciuisition  of  real  estate  is  doing  business  within  the 
meaning  of  the  section  ;  but  it  does  not  prevent  the  com- 
pany resisting  a  trespass  by  maintaining  suit  at  law. —  Utley 
V.  Clark  Gardner  Co.,  4  M.  R.  3!) ;  In  re  Comstoch,  3  Saiv.,  223. 

But  where  the  matter  has  been  at  first  neglected  and 
yet  complied  with  before  the  suing  out  of  a  Quo  Warranto, 
or  other  inquisition,  or  at  least  before  adverse  rights  have 
accrued,  the  final  compliance  would  doubtless  be  considered 
as  having  a  retroactive  cflect  in  a  manner  analogous  to  the 
case  of  naturalization.     See  p.  1G7. 


178  FOREIGN   CORPORATIONS. 

The  same  section  G.  S.  ?  260,  declares  that  all  foreign 
corporations  shall  be  "  subject  to  all  the  liabilities,  restric- 
tions and  duties  which  are  or  may  be  imposed  upon  corpo- 
rations of  like  character  organized  under  the  General  Laws 
of  this  State  and  shall  have  no  other  or  greater  powers  ;  " 
forbids  the  purchase  or  holding  of  real  estate  by  foreign 
corporations  except  as  provided  for  in  such  Act  and  pro- 
hibits any  mortgage  or  other  preference  to  foreign  to  the 
exclusion  of  domestic  creditors,  postponing  any  such  mort- 
gage until  all  domestic  debts  at  tie  date  of  its  record  shall 
have  been  paid. 

Foreign  corporations  are  further  required  (G.  S.  ?  261) 
to  file  a  copy  of  their  charter  in  the  office  of  the  Secretary 
of  the  State  of  Colorado,  or  if  "  incorporated  by  certificate 
under  any  general  incorporation  law  a  copy  of  such  certifi- 
cate and  of  such  general  incorporation  law  duly  certified 
and  authorized  by  the  proper  authority  of  such  foreign 
State,  Kingdom  or  Territory."  These  papers  are  not  re- 
quired to  be  filed  with  the  County  Recorder. 

The  "proper  authority"  alluded  to  would  be  in  general 
the  Secretary  of  the  State  where  organized. 

Upon  failure  to  comply  with  the  requirements  of  either 
section  every  officer,  agent  and  stockholder  is  made  per- 
sonally responsible,  on  all  contracts  made  while  the  com- 
pany remains  in  default. — (G.  S.  ^  262.) 

Fill  lis  Fee. — By  Act  of  April  4,  1887,  (Sess.  Laws  p. 
406)  each  foreign  (the  same  as  domestic)  corporation,  upon 
filing  its  Articles  as  above  mentioned  in  the  office  of  the 
Secretary  of  State,  is  required  to  pay  a  fee  or  tax  for  the 
use  of  the  State  of  $10  for  the  first  $100,000  of  its  capital 
stock  and  ten  cents  for  each  additional  $1,000  of  stock. 

Donaesiic  Charter  Preferable. — The  provisions  of 
the  above  sections,  together  with  the  fact  that  a  foreign 


INDIAN   RESERVATION.  179 

corporation  is  liable  to  attachment  as  a  uon-resident  in  any 
case  where  a  defendant,  and  where  a  plaintiflf  must  file 
special  security  for  costs,  renders  a  domestic  organization 
preferable  in  most  cases. 

Ooinestic  Orgiiiiizatioii  by  Non-Residents. — 
The  Corporation  Law  of  Colorado  does  not  in  terms  require 
the  organizing  associates  to  be  citizens  or  residents  ;  but  a 
domestic  organization  composed  entirely  or  substantially  of 
non-residents  would  be  practically  a  foreign  corporation, 
and  its  validity  might  be  seriously  questioned.  In  any  case, 
however,  where  the  acknowledgment  is  made  out  of  the 
State  it  should  be  taken  before  a  Commissioner  of  Deeds  or 
before  a  Clerk  of  a  Court  of  Record  (  not  a  Deputy  Clerk  ), 
because  when  taken  before  a  Notary  Public  the  acknowl- 
edgment is  invariably  defective,  if  not  void. 


INDIAN  RESERVATION. 


An  Indian  reservation  is  not  a  part  of  the  public  do- 
main open  to  exploration  or  occupation,  and  a  valid  mining 
location  cannot  be  maile  upon  it.  An  attempted  location 
made  before  the  extinguishment  of  the  Indian  title  must 
yield  to  one  made  after  its  purchase.  Kendall  v.  San  Juan 
M.  Co.  9  Colo.  349. 

But  in  Noonan  v.  Caledonia  M.  Co.  121  U.  S.  393  the  Su- 
preme Court  of  the  United  States  have  ruled  that  on  the  ces- 
sion of  the  reservation  the  claim  becomes  valid. 

A  claim  within  the  Reservation  cannot  bo  patented. 
Copp  M.  L.  2")3.  And  the  location  of  scrip  thereon  is  void. 
V.  S.  V.  Carpenter,  111  U.  S.  317. 


180  ORE  BUYERS. 

POLICE  REGULATIONS  UrOxN  ORE  BUYERS. 


By  Act  of  February  7,  1877,  found  in  section  2506  of 
the  General  Statutes,  every  company  or  individual  "en- 
gaged in  the  business  of  milliug,  sampling,  concentrating, 
reducing,  shipping  or  purchasing  ores  in  the  State  of  Colo- 
rado," is  required  to  keep  a  book  in  which  shall  be  entered 
at  the  time  of" the  delivery  of  each  lot  of  ore— 

"Ftrst—The  name  of  the  party  on  whose  behalf  such  ore  is 
delivered,  as  stated. 

Second— The  name  of  the  teamster,  packer  or  other  persons 
actually  delivering  such  ore,  and  the  name  of  the  owner  of  the 
team  or  packtraiu  delivering  such  ore. 

Third— The  weight  or  amount  of  every  such  lot  of  ore. 

Fourth— The  name  and  location  of  the  mine  or  claim  from 
which  it  shall  be  stated  that  the  same  has  been  mined  or  pro- 
cured. 

Fifth— The  date  of  delivery  of  any  and  all  lots  or  parcels  of 
ore." 

The  succeeding  sections  provide  that  parties  claiming 
an  interest  in  ore  delivered  shall  have  the  privilege  of 
examining  such  books  and  for  penalties  in  case  of  failure  to 
keep  the  same.  And  that  neglect  to  make  proper  inquiries 
from  parties  bringing  ore  to  the  mill  shall  not  excuse  fail- 
ure to  comply.  They  also  attempt  to  make  the  purchaser 
criminally  liable  for  ore  bought  from  mines  held  "  contrary 
to  any  penal  law  now  in  force,"  which  was  intended  to  in- 
clude cases  where  possession  had  been  taken  by  violence, 
contrary  to  the  provisions  of  the  jumping  act.     G.  S.  ^  2414. 


PENAL  PROVISIONS. 


Fraudulent  flold  Pnst  Scales.— G.  S.  g  886.— If  any  person 
shall  knowingly  have,  keep  or  use  any  false  or  fraudulent  scales 
or  weights  for  weighing  gold  or  gold  dust  or  any  other  article  or 
commodity,  every  such  person  so  offending  shall,  on  conviction, 
be  (hied  not  exceeding  live  liundred  dollars,  or  imprisoned  in  the 
county  jail  not  exceeding  six  months.— iVou.  5, 1861. 


PENAL  PROVISIONS.  181 


FrnnilulPiit  Mill  Sciilos.— G.  S.  ?  2.")11.— Any  person,  associa- 
tion or  corporation,  or  the  agent  of  any  person,  as>-ociaiion  or 
corporation  cnsiiKcd  in  tlie  business  ol"  milling,  sampling,  con- 
centrating, reducing,  shipping  or  purchashiiig  ores,  as  aforesaid, 
who  shall  keep  or  use  any  false  or  fra\idulent  scales  or  weiglits 
for  weighing  ore,  or  who  shall  keep  or  u^e  any  false  or  fraudulent 
as.say  scales  or  weights  for  a.scertaining  the  assay  value  of  ore, 
knowing  them  to  be  false,  every  person  so  oUending  shall  be 
deemed  guilty  of  a  misdemeanor,  and  on  conviction  thereof  >hall 
be  fined  in  a  sum  not  exceeding  one  thousand  ddOO)  dollars,  nor 
less  than  one  hundred  (100)  dollars,  or  inii)risf,ninent  not  more 
than  one  year,  or  both,  at  llie  discretion  of  the  Court.—  Feb.  7, 1»77. 

Debaspd  Gold  Dust.— Sections  779  and  780  make  it 
pen,al  to  knowingly  have  or  pass  debased  gold  dust.  In 
People  V.  Page,  1  Ida.,  102,  the  defendant  was  convicted  on 
indictment  for  having  in  possession  instruments  for  nian- 
nfacturing  bogus  gold  dust.  In  People  v.  Sloper,  1  Ida.,  1.'58, 
aud  People  v.  Page,  Id.,  ISO,  the  oflense  of  uttering  such 
material  is  discussed. 

Fraiidulfnt  Uinlervalimlion  of  Opps.— G.  S.  g2r)I2.— Any  per- 
son, corporation  or  as-ociaiion,  or  tlic  agent  of  any  person, 
corporation  or  as-ociation  engaged  in  the  milling,  sampling, 
concentrating,  n-ducing,  shipping  or  purchasing  of  ores  in  this 
State,  who  shall,  in  any  manner,  knowingly  alter  or  change  the 
true  value  of  any  ores  delivered  to  hiin  or  them  so  as  to  deprive 
the  seller  of  the  residt  of  the  correct  value  of  the  same,  or  who 
shall  substitute  other  ores  for  that  delivered  to  him  or  them,  or 
who  shall  is>ue  any  bill  of  sale  orccrtilicate  of  purchase  that  does 
not  exactly  and  truthfully  state  the  actual  weiglit,  assay  value 
and  total  amount  paid  for  any  lot  or  lots  of  ore  THirchased,  or  who. 
by  any  secret  understanding  or  agreement  with  another  shall 
is-ueii  bill  of  sale  or  eertilicate  of  purc^hase  that  does  not  truth- 
fully and  correctly  set  forth  the  weight,  assay  value,  and  total 
amount  jiaid  for  any  lot  or  lots  of  ore  purchased  by  him  or  them, 
shall  be  deemed  guilty  of  a  misdemeanor,  and"  on  conviction 
thereof  shall  l>e  fined  iii  a  sum  not  exceeding  oire  thousand  (pKiQ) 
dollars,  nor  less  than  one  hundred  (100)  dollars,  or  imprison- 
ment not  more  than  one  year,  or  both,  at  the  discretion  of  the 
CoMTt.—Feb.  7,  1877. 

There  is  also  a  section  (887)  against  a  mill  refusing  to 
turn  over  the  proceeds  of  gold  quartz  under  the  old  system 
of  custom  work. 

Sailing  Orp.— G  S.  ?  S97.— That  every  person  who  shall  min- 
gle or  cause  to  be  mingled  with  any  samjile  of  gold  or  silver  bear- 
ing ore,  any  valuable  metal  or  substance  whatever  that  will  in- 


182  PENAL   PROVISIONS. 

crease  or  in  any  way  change  the  value  of  said  ore,  with  the  in- 
tent to  deceive,  cheat  or  defraud  any  person  or  persons,  shall,  on 
conviction  thereof,  be  punished  by  "a  fine  not  less  than  five  hun- 
dred nor  more  than  one  thousand  dollars,  or  by  confinement  in 
the  penitentiary  for  a  term  not  Ics.s  than  one  nor  more  than  four- 
teen years,  or  by  both  such  fine  and  imprisonment. — Feb. 12, 1874. 

At  the  April  Term,  1873,  of  the  District  Court  of  Clear 
Creek  County,  a  couvictlon  was  had  before  Hon.  James  B. 
Bclford.  Judge,  for  salting  ore  (mixing  silver  filings  with 
the  mill  sample)  under  an  indictment  for  obtaining  money 
under  false  pretenses,  which  offense  is  now,  however,  spe- 
cially provided  for  in  the  above  Section  897. 

Ore  Stftalinj;  by  Lessees.— G  S.  g  2.')1,3  —If  any  person,  les.see, 
licensee  or  employee  in  or  about  any  mine  in  this  State,  shall 
break  and  sever,  with  intent  to  steal  the  ore  or  mineral  from  any 
mine,  lode,  ledge  or  deposit  in  this  State,  or  shall  take,  remoTe 
orconceal  the  ore  or  mineral  from  any  mine,  lode,  ledge  or  de- 
posit, with  intent  to  defraud  the  owner  or  owners,  lessee  or 
licensee  of  any  such  mine,  lode,  ledge  or  deposit,  such  offender 
shall  be  deemed  guilty  of  felony,  and  on  conviction  shall  be 
punished  as  for  grand  larceny.— /-Vi;.  7,  1877. 

This  section  does  not  apply  to  ore  stealing  by  strangers, 
or  to  what  at  common  law  would  be  considered  larceny,  ia 
any  case  where  )io  privity  exists  between  the  parties.  Itj 
constitutionality  Wiis  doubted  under  certain  technical 
clauses  of  the  constitution,  but  it  has  been  declared  valid  in 
Clare  v.  People,  9  Colo.  122. 

Trespass,  not  Larceny. —The  taking  of  ore  by  sever- 
ing it  from  the  realty,  accompanied  by  its  immediate 
asportation,  can  in  no  case  be  considered  larceny. — Peo.  v. 
Williams,  4  M.  R.  185 ;  State  v.  Berrymm ,  Id.  199 ;  State  v. 
Burt,  Id.  190. 

Tbis  distinction,  which  is  supposed  to  be  technical,  is 
in  some  of  the  cases  referred  to  as  unsubstantial  and  inde- 
fensible, although  its  force  as  decided  law  is  not  questioned  ; 
on  the  contrary,  it  is  a  distinction  ucce.ssary  to  check  the 


PENAL  PROVISIONS.  183: 

constant  tendency  to  seek  a  criminal  remedy  where  the 
civil  remedy  is  ample,  and  in  ainiost  all  cases  of  such  sev- 
erance a  felonious  intent  is  wholly  wanting. 

RcmoTlnir  Location  Marks.— C!  S.  g 'JIO.— That  if  any  person 
or  persons  shall  wilfully  and  ninliciously  deface,  remove,  pull 
down,  injuic  or  dc.stiov  any  location  f^take,  side  post,  corner- 
post,  land  mark  or  moninuont,  or  any  other  legal  land  boinidary 
monument  in  this  Slate,  designating,  or  intending  to  designate, 
the  location,  boundary  or  name  of  any  mining  claim,  lixle  or 
vein  of  mineral,  or  the  name  of  the  discoverer,  or  diitc  of  discov- 
ery thereof,  the  person  or  persons  so  otfending  shall  be  guilty  of 
a  misdemeanor,  and  on  conviction  thereof  shall  be  fmed  not 
more  than  one  thousand  dollars,  or  imprisoned  not  more  than 
oneyear.atthediscretion  of  the  Court ;  Provided,  That  this  Act 
shall  not  apply  to  abandoned  property.— Feb.  0,  Ib'C. 

Malicious  Mischief. — An  act  of  similar  nature  con- 
cerning the  removing  of  shait-coverings,  timbering,  etc.,  is 
found  in  the  Session  Laws  of  1885,  p.  276. 

.Ininpin:;  Claims  by  St<>ulth  or  Violence— G,  S.  J  2414. — In 

all  cases  when  two  or  more  persons  shall  associate  themselves 
together  for  the  purpose  of  obtaining  the  possession  of  any  lode, 
gulcli  or  pltioer  claim,  then  in  the  actual  v>osses.sion  of  another, 
by  force  and  violence  or  threats  of  violence,  or  by  stealth,  and 
Bhall  proi^eed  to  carry  out  such  purpose  by  making  threats 
against  the  party  or  parties  in  po.ssession,  or  who  shall  enter 
upon  such  lode  or  mining  claim  for  the  purpose  aforesaid,  or 
who  shall  enter  upon  or  into  any  lode,  guleh,  placer  claim, 
quartz  mill,  or  other  mining  property,  or  not  being  upon  such 
property,  but  within  hearii\g  of  the  same,  shall  make  any 
threats,  or  iniike  use  of  any  language,  signs  or  gestures  calculated 
to  intimidate  any  person  or  iiersons  at  work  on  sai<l  property 
from  continuing  to  work  thereon  or  therein,  or  to  irUimidate 
others  from  engaging  to  work  thereon  or  therein,  every  such 
person  so  oflending  slmll,  on  conviction  thereof,  be  fined  in  a  sura 
not  to  exceed  two  hinid red  and  fifty  dollars,  and  be  imprisoned 
in  the  County  .Tail  not  less  than  thirty  days  nor  more  than  six 
months,  such  tine  to  be  discharged  either  by  pavment  or  by  con- 
finement in  said  jail  until  such  line  is  discharged  at  the  rate  of 
two  dollars  and  til'ty  cents  per  day.  On  trials  under  this  .section, 
proof  of  a  common  purpose  of  iwo  or  more  persons  to  obtain 
possession  of  property  as  afore.siiid,  or  to  intimidate  laborers  as 
above  set  forth,  nccompanicd  or  followed  by  any  of  the  acts  above 
specified  by  any  of  them,  shall  be  suflicient  evidence  to  convict 
any  one  committing  such  acts,  although  the  parties  may  not  bo 
ass(K'iatcd  together  at  the  time  of  committing  the  same.  Feb. 
13,  1874. 


184  EJECTMENT. 

The  above  section  is  intended  to  prevent  vyhat  has  com- 
monly been  termed  mine  "jumping" — which  word  is  com- 
monly met  with  in  some  of  the  old  statutes  as  well  as  in 
the  district  rules,  and  occasionally  in  law  reports. — Arnold 
V.  Baker,  7  M.  E.  Ill;  Murphy  v.  Cobb,  5  M.  B.  530.  As  a 
pcTial  statute  it  is  awkwardly  framed,  and  the  substantial 
remedy  is  by  a  section  passed  at  the  same  time,  by  which 
possession  is  restored  to  the  party  forcibly  dispossessed.  See 
page  195. 

Homicide  Ensiiiiis  from  Mine-Jumpinsis  made 
murder  in  the  first  degree  by  Act  of  1874,  amended  in  1876, 
(  G.  S.  §  2415 )  but  this  section  is  probably  qualified  by  the 
Act  of  1883,  defining  murder,  ( G.  S.  ?  709.) 

Coal  Mines. — There  are  also  special  Acts,  G.  S.  §  § 
194-196,  Acts  of  1885  p.  134,  1337  p.  222,  regulating  coal 
mines,  specially  providing  for  inspection  of  the  same  and 
guarding  against  spontaneous  combustion,  gob-fires,  open 
pits,  fire  danjp  and  other  dangers. 

Ventilation,  Children,  Strikes. — The  Constitution, 
Art.  16,  §  2,  requires  the  passage  of  laws  securing  safety 
escapes  and  ventilation  in  mines,  but  there  have  been  no 
statutes  yet  passed  upon  these  subjects  except  the  Colliery 
Acts  above  mentioned.  The  employment  of  children  under 
fourteen  years  of  age  is  forbidden  by  Act  of  1837,  p.  76. 
There  are  no  Acts  especially  refci-ring  to  strikes,  negligence, 
of  employers  or  attempting  to  regulate  working  of  mines 
( other  than  coal  mines )  under  penalties. 


EJECTMENT. 


Pleadings. — Under  the  Code  the  distinct  names  of 
the  various  actions  arc  abolished,  but  the  distinctions  con- 


EJECTMENT.  185 

tinuc  tho   same   in   fact,  and   tho  term  ejectment  has  its 
specific  application  the  same  as  formerly. 

Section  2G7  of  tlie  Code  requires  ii  concise  statement  iu 
the  coiu[iluint  of  the  nature  of  tiie  title,  when  possessory. 

Supportin*;  Adverse  Claim. — It  is  the  action  al- 
ways brought  in  support  of  an  adverse  claim.  Becker  v. 
Pugh,  9  Colo.,  5S9.  In  such  suit  it  is  immaterial  which 
party  is  in  actual  possession  at  the  time  when  the  action 
was  brought.  Id.  And  no  proof  of  an  ouster  is  required. 
Golden  Fleece  Co.  v.  Cable  Co,  1  M.  R.,  120. 

The  object  of  the  suit  is  to  determine  the  right  of  pos- 
session, and  the  result  is  to  decide  which  party  is  entitled 
to  a  patent  from  the  United  States.  The  Government 
being  thus  an  interested  party,  each  side  must  prove  its  own 
case  allirmatively,  and  to  either  recover  or  successfully 
defend  must  show  a  valid  location.  Baij  Slate  Co.  v.  Brown, 
21  Fed.,  167 ;  Jackson  v.  Rohij,  109  U.  S.,  440 :  McGinnis  v. 
Egbert,  8  Colo.,  41 ;  Eosenlhal  v.  Ives,  12  Pac,  904.  Neither 
party  is  entitled  to  a  verdict  upon  mere  proof  of  prior  ]>os- 
sessiou  alone — as  is  the  rule  in  a  contest  where  individuals 
only  are  interested.  (Sears  v.  Taylor,  U  M.  R.,  318.)  Al- 
though possession  may  become  iucideutly  a  material  issue 
in  the  case.    See  adverse  claim. 

Possession,  How  Proved. — A  person  who  has  pur- 
chased a  mining  chum,  which  had  been  properly  located 
and  marked  out  upon  the  ground,  and  who  is  personally  or 
by  his  agents,  upon  the  claim,  working  and  developing  it, 
and  keeping  up  tho  boundary  stakes  and  marks  thereof,  is 
not  merely  in  the  constructive  possession  of  sucli  claim  hy 
virtue  of  mining  laws,  bat  is  in  the  actual  possession  of  the 
whole  claim;  such  possession  is  a  posaessio  pedis,  extending 
to  the  boundary  lines  of  the  chiim.— North  Noonday  Co.  v. 
Orient  Co.,  9  M.  R.,  531. 


186  FORCIBLE  I^TRY. 

Actual  occupation  of  a  part  of  the  claim  under  papers 
calliug  for  the  entire  tract  by  metes  and  bounds,  gives  con- 
structive possession  of  the  entire  tract. — Harris  v.  Equator 
Co.,  12  M.  R.,  178;  Attwood  v.  Fricol,2  M.E.,30o;  Hesav 
Winder,  12  M.  B.,  217. 

Possession  is  a  question  of  lav?  ;  the  witness  must  tes- 
tify to  facts,  and  it  is  for  the  Court  to  say  whether  these 
facts  amount  to  possession. —  Thistle  v.  Frostherg,  Co.,  10  Md., 
129.  But  the  uniform  holding  of  the  United  States  Court, 
at  Denver,  has  been  that  the  question  as  to  possession  may 
be  asked  directly,  leaving  it  to  the  cross-examination  to 
bring  out  whether  the  facts  stated  amount  to  possession, 
and  this  is  the  more  sensible  practice. 

Presunn>tioii  ol  Location. — Where  a  plaintiff  has 
been  in  actual  possession  of  his  claim  for  the  full  period  of 
the  Statute  of  Limitations  (five  years)  a  presumption  may 
be  indulged  as  against  a  wrong  doer  at  least,  that  bis  loca- 
tion was  regularly  made,  without  putting  him  to  proof  of 
its  successive  steps.     Harris  v.  Equator  Co.,  supra. 

Second  Trial. — After  the  firet  trial  the  losing  party 
may  pay  the  costs  before  the  first  daj'  of  the  next  term  and 
take  a  second  tria'. — Code,  ^  272.  And  if  the  second  trial 
result  in  favor  of  the  party  who  lost  the  first  case  a  third 
trial  will  be  granted  on  like  terms. 


FORCIBLE  ENTRY. 


The  acts  concerning  forcible  entry  and  unlawful  de- 
tainer (1835,  p.  224  ;  1887,  p.  270)  apply  to  possessory  as  well 
as  other  claims,  but  those  acts  are  so  involved,  so  abrupt 
and  cruel  in  their  attempt  to  substitute  haste  for  delibera- 
tion, that  they  result  in  driving  to  appeals  aud  in  the  end 
to  more  lengthy  and  costly  litigation  than  where  ejectment 


ATTACHMENT.    TRESPA^S.-DAMAGES         187 

is  resorted  to  in  the  first  instance.  Especially  is  this  the 
case  where  the  action  is  commenced  before  a  justice  of  the 
peace  before  whom  proteciliiiKS  are  so  vexatious,  oppressive, 
and  attended  with  so  much  heavier  costs  than  such 
as  accrue  in  Courts  of  Record,  tliat  it  is  rarely  advisa- 
ble to  seek  the  remedy  for  any  wrong,  in  any  form  of  action 
before  them. 


ATTACHMENT.    TRESPASS. 


In  1872  an  Act  was  passed,  repeated  in  Sec.  119  of  the 
Code  of  1877,  allowing  mines  and  the  ore  extracted  from  the- 
same  to  be  attached  in  cases  of  alleged  trespass ;  that  is  to 
say,  where  the  same  property  was  claimed  by  adverse  par- 
tics.  Its  abuse,  enabling  any  party  who  was  able  to  furnish 
bonds,  to  cripple  the  means  of  the  opposite  party,  led  to  its- 
repeal  in  1879. 

Damages  in  trespass  may  now  be  recovered  in  the  same 
action  in  which  the  title  is  tried,  or  by  separate  action. 
Section  272  of  the  present  Code  purports  to  forbid  allowance 
of  improvements  as  offset  to  damages. 


Ml'lASURE  OF  DAMAGES. 


For  Ore  Taken. — Tlie  true  measure  of  damages  de- 
pends upon  circumstances  of  aggravation,  ranging  from  the 
profits  of  working  to  the  gross  value  of  the  ore  after  break- 
ing from  the  stope. — Empire  Co.  v.  Bonanza  Co.,  67  Cal.,  40G; 
In  re   United  Merthyr  Co.,  10  M.  R.  153;  Ege  v.  KiUe,  Id.  212. 

In  a  case  of  trespass  by  extracting  ore,  decided  bj-  the 
Supreme  Court  of  Nevada,  all  the  authorities  are  collected 
and  the  rule  laid  down  that  the  cost  of  mining  should  bo 


188  ACTIONS  BASED  ON  NEGLIGENCE. 

deducted  from  the  value  of  the  ore  in  all  cases,  where  neither 
fraud  nor  culpable  negligence  constituted  any  element  of 
the  ca.se.— Waters  v.  Stevenson,  10  ill.  R.,  240;  29  Am.  Rep., 
293.  And  the  decisions  at  nisi  prius  in  Colorado,  as  far  as 
the  writer's  knowledge  extends,  have  adopted  the  same  rule, 
the  arbitrary  clause  in  the  Code  above  cited  being  in  such 
context  and  so  worded  that  it  does  not  prevent  deduction 
of  cost  of  getting  the  ore,  an  1  covers  no  case  except  an 
action  for  mesne  profits,  strictly  so-called. 

It  is  further  debatable  how  far  a  legislature  may  inter- 
fere with  the  question  of  the  measure  of  damages,  which  is 
strictly  a  judicial  matter. 

Ill  Mit-csliaiieous  Casts.— For  the  measure  of  dam- 
ages on  refusal  to  accept  deed,  see  Gilpin  M.  Co.  v.  Dralce,  8 
Colo.,  586.  On  breach  of  contract  to  lease:  Chambers  v. 
Brown,  28  A'.  W.  Rep.,  561.  In  cases  of  negligence.  Moody  v 
McDonald,  2  M.  R.,  187.  On  tunnel  contract:  Monroe  v. 
Northern  Pac.  Co.  Id.,  652.  Against  lessor  for  mining  the 
ground  leased :  Chamberlain  v.  Collinson,  9  M.  R.,  37. 


ACTIONS  B.iSEI)  ON  NEGLIGENCE,  ACCI- 
DENTS, ETC. 


The  same  rule  governs  the  liabilities  of  owners,  lessees 
.and  contractors  in  case  of  accident  to  employes,  as  controls 
in  other  cases  where  the  relation  of  master  and  servant 
exists  and  necjligencc  is  the  foundation  of  the  action. 

Mc Andrews  v.  Burns,  39  N.  J.  L.,  117. 
Perry  v   Ricketts,  55  111.,  234  ;  9  M.  R.,  687. 
Hull  V.  Johnson,  ;j  IT.  and  C,  589  ;  9  M.  K,  684. 
Quincy  Co.  v.  Hood,  77  111.,  69;  12  M.  E.,  148. 
.Slrahlendorfv.  Rosenthal,  30  Wise,  675;  10  M.  R,  676. 


REPLEVIN.  189 

The  mine  owucr  must  look  to  the  proper  support  of  his 
gangways  and  to  the  timbering  and  to  the  machinery 
:il)ove.  Qn'incy  Co.  v.  Hood,  12  M.  R.  148;  Slrahlendorf  v. 
Rosenthal,  10  If.  R.  G7fi;  Ardesco  Co.  v.  Gilson,  10  M.  R.  6G9. 

He  is  liable  for  accidents  resulting  from  experiment- 
ing with  new  and  untried  explosives.  Smithv.  Oxford  Co.,  2 
M.  R.  208. 

He  is  responsible  when  the  accident  can  be  traced 
directly  to  his  own  fault  or  the  fault  of  his  partner.  Mel- 
lorsv.  Sharv,  D  M.  R.  678.  And  in  many  cases  where  traceable 
to  the  fault  of  the  Superintendent  or  foreman. 

Contributory  Negligence.  Co-Employee. —  But 
the  mine  owner,  as  a  general  rule,  is  not  liable  when  the 
accident  was  in  whole  or  in  ])art  attributable  to  the  negli- 
t;once  of  the  party  injured  or  to  the  carelessness  of  a  fellow 
workman  not  occupying  a  directing  or  superior  position  to 
the  party  injured.  Kevernv.  Prov.  Co.  70  Cal.  392;  Ardesco 
Co.  V.  Gilson,  10  M.  R.  609 ;  Berea  Co.  v.  Kraft,  Id.,  16  / 
Trihaij  v.  Brooklyn  Co.,  11  Pac,  612. 


REPLEVIN. 


Ore  Taken  Under  Claim  of  Title. — Where  a  party 
is  in  possession  of  a  mine  under  a  bona  fide  claim  of  title, 
t!ic  party  out  of  possession  cannot  maintain  replevin,  or  an 
action  under  the  Code  in  the  nature  of  replevin,  for  the  ore 
taken  from  the  same  ;  because  the  trial  of  the  right  of  prop- 
erty in  the  ore  in  such  case  would  necessarily  involve  the 
trial  of  the  title  to  real  estate.  Brown  v.  Caldwell,  12  M.  R. 
674;  Mather  V.  Trinity  Church,  14  M.  R.;  Harlan  v.  Harlan, 
1">  Pa.  St.  507;  Anderson  v.  Harper,  34  III.  436;  Page  v. 
Fowler,  23  Cal.  605;  Smithv.  Idaho  Q.  M.  Co.  11  Pnc. 878. 

Defendant  cauuot  re-replevy  ore. — Morris  v.  DeWitt,  12 
M.  R.  680. 


190  INJUNCTION. 

INJUNCTION. 


At  some  stage  of  its  progress  a  contest  over  a  working 
mine  is  almost  sure  to  suggest  this  sort  of  relief.  It  is  true 
that  the  prayer  for  an  injunction  is  always  to  a  certain  ex- 
tent addressed  to  the  discretion  of  the  Court,  but  the  exer- 
cise of  this  discretion  does  not  imply  the  total  absence  of 
principles  applicable  to  this  class  of  cases. 

The  ground  for  the  application  of  injunctive 
relief  18  that  the  property  may  be  preserved  pend- 
ing litigation  for  the  Hltimate  use  of  the  rightful  owner 
and  may  not  in  the  meanwhile  be  destroyed  by  a  tres- 
passer. But  the  pendency  of  litigation  is  not  of  itself  suf- 
ficient; the  complainant  must  go  farther  and  show  that  his 
case  is  based  upon  substantial  facts,  and  that  there  is  a 
probability  of  a  decision  in  his  favor  when  the  cause  is  tried 
on  its  merits.  As  he  asks  relief  in  advance  of  the  trial,  it 
is  only  just  that  he  make  it  appear  that  the  trial  when  had 
will  show  that  he  was  in  fact  entitled  to  this  protection ; 
and  especially  so  when  a  decree  of  this  sort  wrongfully 
issued  may  be  and  often  is  as  great  an  injury  to  the  de- 
fendant as  the  conversion  of  some  of  the  ore  is  to  a  rightful 
complainant. — Capner  v.  Flemington  Co.,  7  M.  R.  263;  Claver- 
ingv.  Clavering,  14  M.  E.  — ;  Irwin  v.  Davidson,  7  M.  R.  237. 

Bond.— The  fact  of  a  bond  being  filed  for  the  relief  of 
the  defendant,  if  injured,  is  a  protection  to  him  only  in 
theory.  A  bond  is  seldom  available  to  the  ultimate  vindi- 
cation of  the  right ;  it  is  no  lien ;  the  measure  of  damages  is 
vexed  and  unsettled,  and  the  security  is  rarely  accessible 
by  the  time  judgment  is  obtained. 

liaches. — Further,  to  entitle  him  to  this  relief  the 
complainant    must  not  have  been  guilty  of  unreasonable 


INJUNCTION.  19J 

I 

delay  nor  have  iiUowctl  the  defendant  to  liavo  proceeded 
without  objection  to  expend  money  in  good  faith  upon  th© 
property. 

Purrotl  V.  Palmer,  3  M.  &  K.,  G32. 

Real  del  Monte  Co.,  v.  Pond  Co.  7  M.  R.  452. 

Emma  Mine  case,  Id.  493. 

Field  V.  Beaumout,  Id.  257. 

Mammoth  Co.'s  Appeal,  Id.  4G0. 

The  solvency  or  instdvency  of  the  defendant,  as 
well  as  many  other  circumstances  applicable  to  particular 
cases,  may  be  taken  into  account,  but  is  not  a  controlling 
consideration  when  the  case  is  otherwise  clear. 

Lochwood  V.  Lunsford,  7  M.  E.  532. 

Hamilton  v.  Ely,  4  Gill.,  34. 

Sierra  Co.  v.  Sears,  7  M.  R.  549. 

Moore  v.  Ferrel,  Id.,  281. 

Irwin  V.  Davidson,  Id.,  237. 

Burnett  v.  Whiteside,  Id.,  407. 

Title  in  Is$iue. — In  cases  where  a  determination  of 
the  legal  title  is  necessary  to  finally  determine  the  rights 
of  the  parties  the  complaint  should  be  framed  to  procure  an 
issue  of  that  sort;  or  a  previous  suit  must  be  pending 
which  will  result  in  determining  the  title;  or  a  seperate 
action  must  be  brought  for  such  purpose.  In  the  United 
States  Courts  where  law  and  equity  distinctions  are  strictly 
maintained,  separate  issues  must  alwajs  be  made.  If  no 
suit  be  pending  to  try  title  the  court  may  order  such 
suit  to  be  brought  as  a  condition  precedent  to  the  granting 
of  the  writ. 

Merced  Co.  v.  Fremont,  7  M.  R.  313. 

V.  8.  V.  Parrott,  Id.,  335. 

Grey  v.  Northumberland,  Id.,  250. 

Old  Telegraph  Co.  v.  Central  Co.,  Id.,  555. 

Hall  V.  Equator  Co.,  U.  8.  C.  Ct.,  Denver— 


192  INJUNCTION. 

and  such  has  been  the  common  practice  in  this  last  cited 
Court. 

Pioservatioii  of  the  l'roi>eity. — The  gist  of  the 
case  and  the  founcation  of  equity  jurisdiction  is  to  save 
the  property  from  destruction,  pending  the  litigation. 

Thomas  v.  Oakley,  7  M.  R.  254. 

Bracken  v.  Preston  Id.,  267. 

Merced  Co.  v.  Fremont,  Id.,  313. 

Moore  v.  Ferrell,  7  M.  R.,  281. 

I^ess  V.  Winder.  34  C'al.,  270. 

West  Point  Co.  v.  Reymert,  7  M.  R.,  528. 

U.  S.  V.  Gear,  3  How.,  132 ;  14  M.  R. 

Chapman  v.  Toy  Long,  1  M.  R..  497. 

Case  Sufficient  (o  Wariant  Injunction.— To 
reduce  the  matter  to  terms  it  may  be  stated  as  a 
proposition,  supported  by  the  weight  of  authority,  that  a 
temporary  injunction,  pending  suit  to  try  title,  will  issue 
as  of  right,  to  restrain  the  working  of  a  mine,  upon  a  case 
which  shows,  after  hearing  on  bill,  answer  and  testimony,: 

1.  That  the  complainant  has  the  legal  title  or  the  elder  and 
better  possessory  title :  or  at  least  such  a. showing  of  title  as  would, 
if  proved  as  staled  in  the  bill,  support  the  verdict  of  a  jury  in  an 
action  of  cjictnient ;  and  where  the  defense  suggested  in  the 
answer  does  not  .show  a  recovery  by  plaintiff  impossible  as  a 
proposition  of  law  ;  and  the  aflidavits  or  depositions  being  con- 
fcidered  the  weight  of  evidence  is  with  complainant  upon  the 
question  of  fact ;  and  that  the  defendant  is  in  possession  taking 
out  ore  (which  of  itself  is  a  destruction  of  the  estate)  in  such  con- 
siderable quantity  as  to  threaten  irreparable  injury. 

Ilenshaw  v.  Clark,  14  Cal,  160  ;  14  M.  R., 

Ilicks  V.  Compton,  IS  Cal,  206. 
More  V.  Massini,  7  M.  R.,  455. 
Magnet  Co.  v.  Page,  7  M.  R.,  540. 
Lockivood  V.  Lunsford.  Id..  532. 
Anderson  v.  Harvey,  Id..  291. 
Erhardt  v.  Boaro,  113  17.  S.,  537. 


INJUNCTION.  193 

2.  That  the  hill  was  brought  without  needless  delay,  and 
that  the  defendiuit  lias  not  been  allowed  or  eneourased  to  exiKjnd 
large  sums  of  money  upon  the  property,  which  it  was  in  the 
power  of  the  complainant  to  prevent. 

Envest  v.  Vivien,  8  M.  R.  205. 

Parroit  v.  Palmer,  and  other  cases  above  cited. 

And  as  matters  more  particularly  addressed  to  the  dis- 
cretion of  the  eourt  are  the  insolvency  of  defendant,  threats 
of  violence  and  danjrer  of  personal  collisions,  the  fact  of 
reckless  mining  vsrithout  regard  to  the  permanent  preserva- 
tion of  the  mine,  etc. 

The  above  propositions  are  made  upon  the  supposition 
of  an  application  fi^r  injunction  after  notice,  appearance 
and  answer. 

But  courts  will  not  enjoin  m  cases  charged  w'th  doubt 
or  where,  on  the  plaintiff's  showing,  final  relief  would  not 
be  granted.  International  Co.  v.  Miles,  22  Fed.,  659;  Gold 
Tel.  Co.  V.  Commercial  Tel.  Co.,  Id.  838. 

As  a  rule  in  equity  pleadings  where  the  defendant 
denies  the  allegations  of  the  bill  in  terms,  the  writ  will  not 
issue ;  but  where  the  bill  is  supported  by  affidavits,  and  is 
filed  to  restrain  irreparable  mischief  by  the  working  of  a 
mine,  and  the  bill,  answer  and  supporting  affidavits  being 
considered  together  the  case  appears  as  stated — for  the 
preservation  of  the  subject  matter  of  controversy  and  as  a 
rule  limited  in  its  application  to  mining  cases  and  others 
standing  on  analogous  facts,  where  the  substance  and  not 
merely  the  use  is  in  jeopardy,  the  answer  is  not  to  be  taken 
as  conclusive,  if  there  remain  to  the  complainant  such  a 
showing  as  is  above  stated. 

Noticf. — The  usual  period  of  notice  to  defendant   is 
six  days,  but  the  Statute  merely  requires  a  notice  "  in  pro- 
portion to  the  urgency  of  the  case."    (  Code,  §  148.)     And 
7 


194  .  INJUNCTION. 

■where  the  defendant  prays  further  time  to  answer,  it  is 
nsual,  on  slight  showing,  to  grant  a  restraining  order  or 
preliminary  writ. 

In  many  States  the  writ  of  injunction  issues  at  once 
upon  complainant's  showing,  and  the  issue  comes  before  the 
court  upon  motion  to  dissolve.  In  this  State  a  reasonable 
notice  is  required  to  be  given  before  the  writ  can  issue 
which  allows  the  defendant  opportunity  to  file  his  answer  ; 
so  that  tlie  argument  is  heard  usually  upon  the  original 
•  motion  for  an  injunction  and  not  upon  the  motion  to^ 
dissolve. 

FORM   OF   INJUNCTION    NOTICE. 

State  OF  Colorado",        ) 
County  of  Lake,  J     " 

In  the  District  Court  of  said  County. 

John  McCombt,  Plninliff,  v.  Frank  M.  Taylor  and  John 
Harvey,  Defendants.— ln]\n\ci\oi\. 

To  the  above  named  defendants  : 

You  and  each  of  you  will  take  notice  that  the  said  Plaintiff 
will  apply  to  Hon.  Luther  M.  Goddard,  Judge  oi  said  Court,  at 
the  Court  House  in  lied  Cliff,  County  of  Eagle,  in  said  State,  at 
the  hour  of  2  (.'clock  P.  M.,  on  the  8th  day  of  July,  A.  D.  ]88«,  or 
as  soon  thereafter  asCounKcl  can  be  heaid,  when  and  where  you 
may  attend  as  you  see  tit -for  a  Writ  of  Injunction  to  restrain  and 
enjoin  you  and  each  of  you,  your  agents,  attorneys,  lessees,  sub- 
lessees," employees,  and  all  persons  under  or  in  privity  with  you, 
from  working,  mining,  extracting  or  carrying  away  ore  from  the 
Fair  Deceiver  I.ofle  Mining  Claim,  situate  on  Carbonate  Hill,  in 
California  IMining  District,  in  said  Comity  of  Lake,  and  for  other 
relief;  and  that  Plaintifi' will  support  the  application  by  the 
Complaint,  Allidavits,  Maps  and  Documentary  Evidence. 

Frank  M.  Owers, 

Leadville,  July  2,  1888.  Attorney  for  Plaintiff. 

Ex  parte  writs  to  enjoin  the  working  of  a  mine  are 
forbidden  by  Statute. — Code  ^  148.  This  provision  has 
been  evaded  by  praying  for  a  writ  to  forbid  removal  or  sale 
of  the  ore  but  the  granting  of  such  a  writ  without  notice 
•would  be  in  violation  of  the  spirit  of  the  law. 


INJUNCTION.  195 

Practice,  on  Hoariiis. — The  notice  having  been 
served  theconiphiinunt  presents  his  bill  or  conipliiint  to  the 
Court  or  Judge  at  chambers.  The  Section  of  the  Code  al- 
lowing a  hearing  before  filing  the  bill  having  been  greatly 
abused,  waspiiri)oselj'  omitted  in  the  revision  of  1887.  If 
the  Complaint  has  not  been  filed  or  a  copy  served  with  the 
notice,  it  is  usual  to  allow  defendant  a  reasonable  time  to 
answer. 

A  demurrer  is  rarely  interposed  to  a  bill  stating  fully 
the  complainant's  case.  And  if  interposed  and  not  sus- 
tained, the  defendant  is  not  in  a  position  to  ask  for  time  to 
answer  over. 

The  complainant  with  his  bill,  and  the  defendant  with 
his  answer,  may  file  affidavits  in  support  of  the  bill  and 
answer  respectively,  and  this  is  usually  advisable. 

The  answer  being  presented,  and  denying  fully  the 
merits  of  the  bill,  the  court  may  either  hear  the  case  on  bill 
and  answer  with  their  supporting  affidavits,  or  refer  the 
matter  to  a  master  or  referee  to  take  depositions. 

Vci'iflcation. — Both  bill  and  answer  should  be  veri- 
fied— and  the  answer  must  be  sworn  to  even  where  the  oath 
of  defendant  is  waived  by  the  proper  clause  to  that  effect  ia 
the  bill.  In  the  latter  case  the  oath  has  not,  indeed,  the 
technical  effect  of  a  sworn  answer,  but  the  answer  has  its 
proper  effect  as  a  plea  and  the  further  effect  of  an  affidavit 
of  the  defendant. 

3Iantlatory  Writ. — Section  159  of  the  Code  provides 
that  where  possession  of  a  mine  is  taken  by  violence  or 
during  intervals  of  labor,  a  mandatory  writ  restoring  pos- 
session shall  issue.  This  Act,  passed  orij;inally  in  1874,  has 
been  found  effective  to  accomplish  the  object  intended  and 
the  forcible  dispossession  of  parties  working  amine  is  now 
almost  unheard  of. 


196  INJUNCTION. 

A  hearing  under  this  Act  goes  only  to  the  matter  of  the 
unlawful  dispossession  of  the  i)laintiff  and  the  writ  leaves 
the  parties  to  their  legal  rights  on  all  other  questions  a& 
thougli  no  such  writ  had  issued." 

An  injunction  mandatory  in  effect  and  implying  affirm- 
ative acts  from  the  defendant  or  the  surrender  of  possession 
of  premises  is  an  unusual  sort  of  relief,  to  be  granted  with 
great  caution,  but  is  not  without  precedent,  even  as  the 
result  of  an  interlocutorv  decree,  and  without  the  aid  of 
any  such  statute. — Cole  Co.  v.  Virginia  Co.,  7  M.  B.,  516. 

The  object  of  the  Act  is  to  allow  the  Court  or  Judge  to 
grant  speedy  and  practical  relief,  whenever  a  party,  in 
peaceable  possession,  has  been  ousted  by  force  or  fraud, 
without  regard  to  any  question,  except  the  fact  and  manner 
of  dispossession,  and  lor  this  object  it  has  been  held  valid 
and  not  unconstitutional  by  all,  or  nearly  all,  the  Judges  at 
Nisi  Prius,  and  has  remedied  one  of  the  greatest  evils  ever 
complained  of  in  the  mining  counties. 

The  Federal  Court  of  this  district,  shortly  after  the 
admission  of  the  State,  declined  to  accept  jurisdiction  under 
this  Act.  But  under  the  principle  laid  down  in  the  late 
case  of  Aspen  M.  Co.  v.  Eucker,  28  Fed.,  222,  as  to  U.  S.  Courts 
exercising  equity  jiowers  where  conferred  by  State  Statute, 
it  is  likely  that  its  jurisdiction  in  a  case  with  proper  parties 
would  not  be  at  this  time  questioned. 

The  practice  under  the  Statute  is  peculiar.  As  soon  as 
the  complaint  is  filed  the  court  is  directed  ipso  facto  to 
grant  a  temporary  writ  restraining  the  working  of  the 
claim.  Such  a  direction  is,  of  course,  void  as  it  directs 
judgment  without  day  in  court  or  trial.  But  the  other 
provisions  of  the  Section  are  not  hurt  by  this  isolated  pro- 
vision ;  they  refer  merely  to  the  division  of  time  between 
the  parties  for  taking  testimony  and  for  a  speedy  adjudica- 


INSPF.CTION  AND  SURVEY.  197 

tion  and  forbid  the  use  of  such  a  writ  jn  favcjr  of  a  party 
who  procured  his  own  possession  by  violation  of  the  spirit 
of  the  Act. 

In  framinj;  bills  under  this  Act  it  is  not  advisable  to 
pray  any  relief  further  than  the  preliminary  writ  and  the 
restoration  of  possession. 

At  least  five  days'  notice  of  aiiplicatiou  must  be  given  ; 
the  form  on  page  194  is  sufticient  to  the  words  "  Writ  of 
Injunction,"  after  wliich  conclude  as  follows: 

Ilavins  the  force  and  effeet  of  a  writ  of  Restitution,  restor- 
ing plaintiff  to  the  possession  of  the  Futaiitij  Lode  Mining  Chiim, 
situate  in  Grand  I^Lii.d  Mining  District,  County  of  JiouUler,  and 
for  a  Temporary  Injunction  restraining  the  workins  of  said  chiim 
in  accoidanco  with  the  terms  of  Section  159  of  the  Code,  and 
that  pliiintittwill  support  the  ai)plication  by  the  complaint  and 
afUdavits.  W>n.  M.  Maunire, 

Denver,  July  '2,  18SS.  Attorney  for  Plaintiff". 

County  Courts  are  forbidden  by  Statute  to  interfere 
with  the  enjoyment,  working  or  possession  of  a  mining 
claim.    G.  S.  i  487. 


INSPECTION  AND  SURVEY. 


Under  Section  3G4,  of  the  Code,  either" party  after  suit 
is  commenced,  is  allowed  the  privilege  of  a  survey  and  in- 
spection of  the  premises,  held  by  the  adverse  party,  after 
demand  and  refusal,  and  after  certain  awkward  and  useless 
notices  and  affidavits,  the  section  cited  being  probably  the 
most  complete  instance  of  involved  and  turgid  composition 
ever  tound  on  a  statute  book. 

After  analysis  of  its  clauses  and  throwing  out  such  por- 
tions as  must  be  discaided  in  order  to  give  grammatical 
sense  to  the  paragraph,  it  seems  that  the  procedure  is  as 
follows : 


198  INSPECTION  AND  SURVEY. 

1.  A  demand  in  writing  is  made  for  permission  to 
survey  and  inspect  some  certain  portion  of  the  premises. 

2.  The  opposite  party  has  three  days  in  which  to  con- 
sent to  or  refuse  this  demand. 

3.  A  refusal  being  had  and  the  three  days  elapsed  the 
party  presents  to  the  Court  or  Judge  a  petition  under  oath 
in  which  he  must  set  forth  his  interest  in  the  premises  and 
"the  reason  why  it  is  necessary  "  that  he  should  have  such 
survey  and  inspection;  stating  the  demand  made  and  the 
refusal  and  praying  an  order  for  survey  and  inspection. 

4.  The  Court  or  Judge  then  fixes  a  time  and  place  for 
hearing  this  petition  and  orders  notice  thereof  to  be  served 
at  least  three  days  before  the  hearing. 

5.  On  the  day  set  the  petition  is  argued  and  may  be 
aided  or  resisted  by  affidavits. 

fi.  The  Court  or  Judge,  if  satisfied  tliat  the  ''facta 
stated  in  the  petition  are  true,"  makes  the  order. 

Three  inspectors  are  alh^wed  to  accompany  the  Survey 
ors;  an  interference  with  them  is  made  contempt  and  che 
costs  are  taxed  against  the  losing  party. 

This  right  of  inspection  always  existed,  in  courts  of 
equity  at  least,  and  has  been  frequently  exercised. 

Ennor  v.  Banoell,  12  M.  E.  101. 
Lonsdale  v.  Cur  wen,  7  Id.  69.'}. 
Atfy-Gen.v.  Chambers,  1:2  Beav.  159. 
Thornhoronqh  v.  f^avage  Co.  7  M.  R.  667. 

Dwidale  v.  Robertson, M.  R. . 

Lewis V.  Marsh.  8  Id.    14. 
Bennitt  v    Whitehouse,  Id.  17. 
Stockbridge  Co.  v.  Cone  Works,  6  Id.  317 . 


STATUTE  OF  LIMITATIONS.  I9^ 

Section  2413  of  the  General  Statutes  on  the  same  sub- 
ject, exists  on  the  statute  books  unrepealed,  but  the  Code 
section  being  of  later  date  controls  its  operation. 

Tlierc  is  also  a  special  provision  for  survey  in  Drainage 
eases.— G.  S.  ?  2420. 


STATUTE  OF  LIMITATIONS. 


Section  2332,  of  the  Unitec"  States  Statutes,  expressly 
recognizes  possession  of  a  mining  claim  during  the  period 
fixed  by  the  State  Act  as  sufficient  to  establish  a  right 
thereto.— 420  Mining  Co.  v.  Bullion  Co,  1  M.  E.  114. 

Prior  to  the  act  of  Feb.  13,  1874  (G.  S.  §  2186-2189). 
■which  prescribes  the  period  of  five  years  as  the  limitation 
to  actions  of  ejectment  for  mining  claims  and  other  classes 
of  real  estate,  no  express  limitation  existed. 

The  continuous  working  of  a  mine,  or  even  its  working 
during  successive  seasons  with  intervening  seasons  during 
which  the  mine  is  left  idle  according  to  the  custom  of  the 
country,  is  as  complete  an  adverse  possession  as  could  be 
gained  by  agricultural  operations  or  other  acts  of  possession. 
—Stephenson  v.  Wilson,  13  M.  R.  408 ;  Wilson  v.  Henry,  1  M.  B. 
152;  157;  420  M.  Co.  v.  Bullion  Co.,  11  M.  R.  G08. 

In  the  case  of  Harris  v.  Equator  Co.  cited  p.  186,  it  was 
intimated  in  the  opinion  ot  the  Court,  Hallett,J.,  that  where 
a  party  had  been  in  possession  of  a  mining  claim  for  the 
period  of  the  Statute  of  Limitations,  such  fact  raised  a  pre- 
sumption, at  least  against  a  wrung  doer,  that  he  held  under 
a  valid  location,  without  proof  of  the  various  acts  of  loca- 
tion, and  such  must  from  the  nature  of  things  be  the 
ultimate  decision  of  all  courts  upon  this  point. 


200  COMMISSIONER  OF   MINES. 

The  Statute  of  Limitations  does  not  begin  to  run  while 
the  title  is  in  the  United  States,  except  as  between  parties 
both  of  whom  claim  by  possessory  title  only. — King  v. 
Thomas,  12  Fac.  865. 

The  limitation  to  tlie  actions  of  replevin  and  trespass  is 
six  years.— (G.  S.  §  2163.) 

The  limitation  to  prosecutions  for  misdemeanors  under 
the  penal  provisions,  is  eighteen  months,  and  for  felonies 
three  years. — (G.  S.  ^  975.) 

Adverse  pos.scssion  of  water  for  the  statutory  period 
gives  title. —  Cox  v.  Clough,  70  Cal.  345. 

To  m^ike  adverse  possession  available  there  must  be  :  1. 
The  occupation  or  use  of  the  land,  and  2,  a  claim  and  color 
of  title.  The  Colorado  Supreme  Court  has  ruled  that  a 
party  following  a  patented  vein  beyond  its  side  lines  has 
not  sufficient  color  of  title  to  maintain  such  defense. — Leba- 
non Co.  V.  Rogers,  8  Colo.  34. 


COMMISSIONER  OF  MINES. 


By  Art.  16,  Sec.  1  of  the  Constitution,  the  above  en- 
titled office  is  established.  Chapter  15  of  the  General  Laws, 
passed  in  1877,  defined  its  duties  and  provided  for  the 
appointment  of  a  person  to  fill  the  office,  but  by  the  refusal 
of  the  Legislature  to  make  any  provision  for  salary  or 
expenses,  the  chapter  referred  to  became  a  dead  letter,  was 
repealed  at  the  session  of  1881,  and  has  not  been  re-enacted. 


ASSAYS,  ASSAY   OFFICES.  201 

ASSAYS,  ASSAY  OFFICES. 


An  assay  is  the  test  of  the  value  of  a  specimen  or  quan- 
tity of  ore  by  the  extraction  of  tlie  amount  of  silver,  gold 
or  other  metal,  contained  in  a  minute  fraction,  which 
amount  is  supposed  to  be  proportionate  to  the  whole 
amount  found  in  the  quantity  from  which  the  fraction  was 
obtained.  Supposing  the  assay  to  be  correct,  its  importance 
in  determining  the  quantity  of  metal  depends  on  the  size 
of  the  lot  from  which  it  was  obtained,  and  the  manner  in 
which  such  lot  was  selected.  What  are  called  specimen 
sissays  are  of  no  value  whatever,  further  than  to  show  the 
contents  of  the  identical  specimen  from  which  made,  but 
are  often  used  to  deceive  persons  ignorant  in  such  matters. 

While  tlie  assay  shows  only  the  contents  of  that  portion 
of  ore  that  has  been  assayed,  its  importance  lies  in  its 
acceptance  as  indicating  the  contents  of  other  ore  of  which 
the  portion  assayed  was  a  '"simple." 

The  intent  of  an  assay  is  to  show  the  true  value  of  the 
ore  and  if  it  is  so  taken  as  not  to  show  such  value,  proof  of 
assays  otherwise  taken  may  be  given  in  evidence.  Phipps 
V.  Unity,  18  Nev.  13.3  ;  15  M.  E.  — . 

Between  ore-buyer  and  ore-seller  ore  is  usually  sampled 
by  the  former  under  supervision  of  the  latter;  this  sample 
(pulverised )  is  divided  into  portions — one  for  the  buyer, 
one  for  the  seller,  and  one  to  be  kept  for  reference  in  case 
of  diflference  between  the  other  two.  The  third  division  is 
often  omitted.  After  division,  each  portion  is  in  itself  a 
sample.  Both  buyer  and  seller  have  a  control  assay  (  assay 
in  duplicate )  made  of  their  respective  samples,  the  assay  of 
the  seller  being  also  a  control  assay  in  regard  to  the  assay  of 
the  buyer. 

The  results  of  carefully  made  assays  of  a  sample  should 
not  differ  more  thau  one  per  cent.,  nor  should  samples  of 


202  SCHOOL  OF  MINES. 

the  same  ore  differ  more  than  two  per  cent.  In  case  of 
excessive  variation  in  assays,  one  or  both  samples  are  as- 
sayed by  a  third  party,  as  referee  for  accuracy  of  assay.  In 
case  of  excessive  variation  of  samples  and  failure  of  third 
sample  to  conform  to  either  of  the  first  two,  ore  is  usually 
resampled. 

Under  the  Territorial  Statutes  were  created  certain 
oflBcial  Assay  Offices.  They  amounted  to  nothing  more  than 
to  confer  a  public  title  on  a  party  carrying  on  a  private 
trade  and  were  abolished  by  the  act  creating  the  office  of 
Commissioner  of  Mines.  Assays  and  analyses  that  may  be 
called  official  can  now  only  be  had  from  the  State  School  of 
Mines,  at  Golden.— (G.  S.  ^  3113.) 


SCHOOL  OF  MINES. 


The  General  Assembly  may  provide  that  the  Sciences  of 
Mining  and  MetaUiirgy  be  taught  in  one  or  more  of  the  institu- 
tions of  learning  under  the  patronage  of  the  Utale.— Const.  Art. 
16.  §  4. 

Under  the  above  provision,  the  "  School  of  Mines,"  at 
Golden,  being  such  an  institution  (Const.  Art.  9,  ^  5)  is  spe- 
cially incorporated  under  Chapter  93  of  the  General  Statutes. 

An  annual  tax  of  one-fifth  of  one  mill  on  all  taxable 
property  is  assessed  for  its  support. — G.  S.  ^  3108.  Its  de- 
clared object  is  to  furnish  "such  instruction  as  is  provided 
for  in  like  technical  schools  of  a  high  grade,"  and  it  ia 
authorized  to  confer  degrees. — G.  S.  §  3102. 

Note.— Its  present  Faculty  consists  of  Regis  CMuvenet, 
President,  Chemistry;  Arthur  Lixkes,  Geology;  Mafjnun  G  ThLseng, 
Engineering;  I'aul  Mci/er,  .Mathematics;  Oeo.  C.  Tildtn,  Ass&y- 
ing;  Henj.  /i.  md/ler,  I'k.  D.,  MetaUurgy. 

The  course  inchtdes  four  years  of  three  terms  each.  A  one 
year's  course  in  assaying  (without  a  degree)  is  also  given. 


LAND  DISTRICTS.  203 

LAND  DISTRICTS. 


There  arc  ten  Land  Districts  in  Colorado  with  offices 
at  Denver,  Central  City,  Lake  City,  Leadvillc,  Pueblo,  Del 
Norte,  Durango,  Gunnison,  Gleuwood  Springs  and  Lamar. 

At  each  land  Ollice  is  a  Eegistor  and  a  Receiver  all  the 
offices  acting  in  connection  with  the  otlice  of  the  Survej'or 
General  at  Denver. 

The  subdivisions  known  as  "  Mineral  Districts  "  have 
been  abolished.  The  "Mining  Districts"  retain  their  use 
as  local  designations  in  Laud  Office  practice  the  same  as  in 
conveyanciug. 

The  boundaries  of  the  several  Laud  Districts  are  as 
follows: 

IJenver  Land  DiRtrlct.— Beginning  at  the  east  boundary  line 
of  the  state,  at  a  point  on  the  second  correction  line  south,  thence 
west  along  said  second  correction  line,  tothe  line  between  ranges 
70  and  71  west ;  thence  north  along  said  range  line  to  the  dividing 
line  between  Boulder  and  Larimer  Counties,  being  the  south  line 
of  township  4  N.  ;  tht-nce  west  to  the  top  of  the  Front  range,  and 
following  the  continental  divide  and  Park  range  to  a  point  on 
line  between  ranges  83  and  SI  west ;  thence  north  to  the  north 
boundary  of  the  btate  ;  thence  east  and  south,  following  the  State 
boundary  line  to  the  place  of  beginning. 

It  includes  Arapahoe,  Weld,  Logan  and  Washington 
counties  and  parts  of  Larimer,  Elbert,  Boulder,  Jefferson 
and  Douglas. 

Central  City  Land  Plstrict.— Following  the  west  boundary 
line  of  the  Denver  Land  District,  from  a  point  where  the  range 
line  (SS-M)  crosses  the  divide  on  the  boundary  line  between 
Grand  and  Routt  Counties,  along  the  Park  range.  Continental 
divide,  Front  range,  the  dividing  line  between  Larimer  and 
Boulder  Comities,  and  the  line  between  ranges  70  and  71  west,  to 
wheie  the  latter  intersects  the  second  correction  line;  thence 
west  tothe  dividing  line  between  Jefferson  and  Park  <'ounties  ; 
thence  north,  following  the  county  line  to  the  first  correction  line 
south  ,  thence  west  along  said  correction  line  to  the  S.  W  .  corner 
of  township  .i  south,  range  8.' west;  thence  north  along  the  line 
separating  ranges  82  and  «3  west  to  the  first  correction  north, 
thence  west  to  the  s.  W.  corner  of  township  5  north,  range 
83  west,  thence  north  along  the  liue  separating  ranges  83  aud  84 
yie^,  to  ihe  place  of  begiuniug. 


204  LAND  DISTRICTS. 

It  includes  Gilpin,  Clear  Creek  and  Grand  counties, 
and  parts  of  Summit,  Eagle,  Jefferson  and  Eoutt. 

LpadTillfl  Land  District.— Bounded  on  the  north  by  the 
Central  Citv  Land  District,  on  the  east  by  the  west  boundary  of 
Jefferson  countv  to  the  S.  \V.  corner  of  lownshiy)  10  south,  range 
71  west.  Thence  east  to  the  northeast  corner  of  township  11 
south,  ran^e  71  west.  Thence  south  to  the  S.  E.  corner  of  town- 
ship I.")  south,  range  71  west.  Thence  west  to  the  N.  \V.  corner  of 
township  51  north,  range  11  east  of  N.  >1.  P.  M.  Tlience  south  to 
the  N.  E.  corner  of  township  49  north,  range  10  east.  Thence  west 
to  the  N.  W.  corner  of  township  49  north,  range  10  east.  Thence 
south  to  tlie  S.  W.  corner  of  township  49  north,  range  10  east. 
Thence  west  to  the  middle  of  township  49  north,  range  6  east  on 
12th  corr.  line  north.  Thence  north  through  the  middle  of  said 
township  to  its  north  boundary.  Thence  west  to  the  S.  W.  corner 
of  township  .W  north,  range  6  east.  Thence  north  to  the  N.  W. 
corner  of  said  township.  Thence  west  to  the  middle  of  town.ship 
51  north,  range  5  east.  Thence  north  to  the  third  correction  line 
south.  Thence  west  to  the  middle  of  township  15  south,  range  81 
west.  Thence  north  through  the  middle  of  townships  15. 14  and 
13  .south  in  range  81  west,  to  the  north  boundary  of  township  13 
south,  range  81  west.  Thence  west  to  the  S.  W.  corner  of  town- 
ship 12  south,  range  81  west.  Thence  north  to  the  divide,  where 
Chaffee  and  Pitkin  counties  join.  Thence  westerly  alon§  the 
divide  and  .soutli  boundary  of  Pitkin  county  to  where  the  divide 
inter.sccts  the  south  boundary  of  township  11  .south,  range  86  west. 
Thence  east  to  tlie  8.  E.  corner  of  towjiship  U  south,  range  83 
west.  Thence  north  along  the  line  separating  ranges  82  and  83 
west,  to  the  intersection  with  the  1st  correction  line  south. 

It  includes  Park,  Lake  and  Cliaffee  counties,  and  parts 

of   Fremont,   Jefferson,    El  Paso,    Gunnison,   Pitkin    and 

Eagle. 

Dfil  Xorte  Land  District.— Beginning  at  the  N.  E.  corner  of 
township  48  nortli,  range  8  east  N.  M.  P.  M.;  thence  south  to  the 
S.  E.  corner  of  said  township;  thence  east  to  the  N.  E.  corner  of 
township  47  north,  range  10  east;  thence  south  to  the  S.  E.  corner 
of  said  township;  thence  east  to  the  N.  E.  corner  of  township  40 
north,  range  11  east;  thence  south  to  the  .S.  E.  corner  of  said 
township;  thence  east  to  the  N.  K.  corner  of  township  45  north, 
range  12  east;  thence  south  to  the  S.  W.  corner  of  township  27 
south,  range  73  west  of  (ith  P.  M. ;  thence  east  to  the  N.  B.  corner 
of  township  28  south,  range  70  west;  thence  south  between  ranges 
69  and  70  west  to  the  south  boundary  of  the  State;  thence  west  to 
where  the  range  line  between  ranges  2  and  3  east  of  N.  M.  P.  M. 
intersects  the  .State  boundary;  thence  north  along  .said  range  line 
to  the  intersection  of  tlie  9th  correction  line  north;  thence  north- 
west along  the  .San  Juan  mountains'  ridge  to  the  S.  \V.  corner  of 
township  39  north,  range  1  east;    thence  north  along  the  N.  M. 


LAND  DISTRICTS.  205 

P.  M.  to  tlie  Intersection  with  the  llth  correction  line  north; 
thence  ea'^t  to  the  S.  W  corner  of  townsliip  45  north,  range  3 
east;  tliencc  north  to  the  N.  W.  corner  of  sairl  townsliip  ;  thence 
east  to  the  S.  W.  corner  of  town-liin  4r>  north,  range  4  east; 
thence  nortli  to  the  N'.  W.  corner  of  said  township;  thence 
east  to  the  S.  W.  corner  of  townsliip  47  north,  range  •">  east; 
th(!nce  nortli  to  tlio  N.  W.  (-orner  of  saiil  township;  thence  east  to 
the  K.  W.  corner  of  township  4S  north,  range  "east:  tlience  north 
to  the  X.  W.  corner  of  said  township;  thence  cast  to  the  phice  of 
beginning. 

It  includes  Conejos  countj',  and  parts  of  Rio  Grande, 
Saguache,  Costilla,  Archuleta,  Huerfano,  Custer  aud  Fre- 
mont. 

I.aVp  Citr  Laml  District.— Beginning  at  a  point  on  the  west 
boundary  of  the  State  where  the  line  between  townships  4fi  and 
47  north  intersects  said  boutidary  in  range  20  west  of  N.  M.  P.  M., 
thence  cast  to  the  X  E  corner  oV  township  ir>  north,  ranged  west, 
thence  south  to  the  S.  W.  corner  of  township  45  north,  range  1 
west ;  thence  east  to  the  N  M.  P.  M.;  thence  south  along  said 
P.  M.  to  the  intersection  with  the  i^an  .fuau  mountains;  thence 
northwesterly  along  the  ridge  of  said  iiountains  to  the  S.  W. 
corner  of  township  41  north,  range  (>  west;  thence  north  to  the 
N  K.  corner  o(  township  42  north,  range  7  west;  thence  west  to  the 
western  boundary  of  the  Stnte;  thence  north  along  said  State 
boundary  to  the"  point  of  beginning. 

It  includes  parts  of  Hinsdale,  San  Juan,  Ouray,  Guani- 
8on,  Montvose,  Saguache  and  San  Miguel  counties. 

Hiirnnsro  T.anil  Histrict.— la  bounded  on  the  north  by  Lake 
City  Land  District,  on  the  cast  by  the  Del  Norte  Land  District, 
and  on  the  south  and  west  by  the  State  boundaries. 

It  includes  La  Plata  aud  Dolores  counties,  parts  of  Saa 

Miguel,  Sau  Juan,  Hinsdale,  Rio  Grande  and  Archuleta 

counties. 

flarfloM  Tianrt  District.— Is  bounded  on  the  west  and  north 
by  the  State  boundaries,  on  the  east  by  the  Denver.  Central  City 
and  Ijeadville.  Land  Districts,  to  the  .S.  K.  corner  of  township  11 
south,  range  S:?  west;  thence  west  to  the  S.  W.  corner  of  township  11 
south,  range  '.)()  west;  thence  west  to  corr.  line  south;  thence  east 
to  S.  E.  corner  of  township  10  south,  range  'J7  west;  tlience  north 
to  the  N.  K.  corjier  of  township  9  south,  range  97  west;  thence 
■west  to  the  boundary  of  the  State. 

It  includes  Garfield  county  and  parts  of  Eagle,  Pitkin, 
Gunnison,  Routt,  Delta,  Larimer  and  Mesa. 


206  LAND  OFFICE  RULES. 

Onnnison  Land  District.— Bounded  on  the  north  by  Garfield 
and  Leadville  Land  Districts,  on  the  east  by  the  Leadville  and 
Del  Norte  Land  Districts,  on  the  south  by  the  Lalce  City  Laud 
District,  on  the  west  by  the  west  boundary  of  the  State. 

It  includes  parts  of  Gunnison,  Mesa,  Delta,  Montrose, 

Oaray  and  Saguache  counties. 

Bent  Land  District  —Bounded  on  the  north  by  the  2d  cor- 
rection line  south,  on  the  east  and  south  by  the  boundaries  of  the 
State,  and  on  the  west  by  the  meridian  line  separating  ranges  52 
and  53  west  of  the  6th  P.  M. 

It  takes  iu  parts  of  Las  Animas,  Bent  and  Elberfi 

Counties. 

Pueblo  Land  District.— Bounded  on  the  north  by  the  Den- 
ver Land  District,  on  the  west  by  the  Leadville  and  Del  Nort© 
Land  Districts,  on  the  .south  by  the  State  boundary,  on  the  east  by 
the  Bent  Land  District. 

It  includes  Pueblo  County,  and  parts  of  El  Paso,  Bent, 
Las  Animas.  Custer  and  Fremont  Counties. 

For  changes  in  Land  Districts  since  the  above  "form" 
was  set  (Feb.  1888)  see  Appendix. 


LAND  OFFICE  RULES,  REVISED  OCTOBER  31,  1881. 

(With  Amendments  to  January  1, 1888.) 
ISSUED  BY  THE  GENEBAL  LAND  OFFICE. 

Hineral  Lands  Open  to  Exploration,  Occupation  and  Pnr- 
eliane.— 1.— It  will  be  perceived  that  by  the  foregoing*  provisions 
of  law  the  mineral  lands  in  the  public  domain,  surveyed  or 
unsurveved,  are  open  to  exploration,  occupation  and  purchase 
by  all  citizens  of  the  United  .States  and  all  those  who  have 
declared  their  intention  to  become  such. 

Status  of  Lode-C'Iainis  Located  Prior  to  May  10,  1872.-2  — 
By  an  examination  of  the  several  sections  of  the  Revised  Statutes 
it  will  be  seen  that  ihe  slattts  of  lode  claims  located  previous  to- 
the  10th  May,  1872,  is  not  changed  with  regard  to  their  extent 
along  the  lode  or  ividth  of  surface, 

♦Note.— In  the  Land  Office  Circular  these  instructions  are 
preceded  by  a  copy  of  the  Congressional  Law. 


LAND   OFFICE  RULES.  207 

*Si(le  Veins,  Addilinnnl  Clrnnt  of.— 3.  —  Mining  rights  ac- 
quired under  such  previous  loratlitus  arc,  liowevor,  enlarged  by 
said  Revised  Statutes  iiitl)e  lollowing  respect,  viz:  Tlic  locators 
of  all  such  jirevidusly  taken  veins  or  lodes,  their  heirs  and 
assigns,  so  long  as  they  comply  with  the  laws  of  Congress  and 
■with  the  State,  Territorial  or  local  regulations  not  in  conflict 
therewith,  governing  mining  claims,  are  invested  with  the  ex- 
clnsive  possessory  right  of  all  the  Burfaee  included  within  the 
lines  of  their  locations,  and  of  al!  veins,  Indes  or  ledges  through- 
out their  entire  depth,  the  to))  or  apex  of  which  lies  inside  of 
8U('h  snrface-litics  extended  downward  vertically,  although  such 
veins,  lodes  or  ledges  may  so  far  depart  from  a  jierpendicular  in 
their  course  downward  as  to  extend  outside  the  vertical  side- 
lines of  such  locationsat  the  surface,  it  being  expressly  provided, 
however,  that  the  right  of  possession  to  such  outsidi;  parts  of 
Raid  veins  or  ledges  shall  be  confined  to  such  portions  thereof  as 
lie  between  veriical  planes  drawn  downward  as  afiresaid, 
throuch  the  end  lines  of  their  locations  so  continued  in  their 
own  direction  that  such  jilanes  will  intersect  such  exterior  parts 
of  such  veins,  lodes  or  ledges;  no  right  being  granted,  however, 
to  the  claimant  of  such  outside  portion  of  a  vein  or  ledge  to  enter 
upon  the  surface  location  of  another  claimant. 

Idem.— 4.— It  is  to  be  distinctly  understood,  however,  that 
the  law  limits  the  possessory  right  to  veins,  lodes  or  ledges,  other 
than  the  one  named  in  the  "original  location,  to  such  as  were  not 
adversely  cloimed  on  Mnji  W.\iu'l,o.w\  that  where  such  other 
vein  or  ledge  was  so  adversely  claimed  at  that  date,  the  right  of 
the  paUy  .so  adversely  claiming  is  iu  uo  way  impaired  by  tlie  pro- 
visions of  the  Kevised  Statutes. 

Annual  Labor  on  Old  Locations.— .5.— In  order  to  hold  the 

possessory  title  to  a  mining  claim  located  prior  to  May  10,  1,S72, 
and  for  "which  a  patent  liiis  not  been  issued,  the  law  requires 
that  ten  dollars  shall  be  expended  annnlly  iu  labor  or  improve- 
ments on  each  claim  of  one  hundred  feet  on  the  course  of  the 
vein  or  lode  until  a  patent  shall  have  been  issued  therefor;  but 
■where  a  number  of  such  claims  are  held  in  common  upon  the 
same  vein  or  lode,  the  aggregate  expenditure  that  would  be 
necessary  to  hold  all  the  claims,  at  the  rate  of  ten  dollars  per 
hundred  feet,  may  be  made  upon  any  one  claim ;  a  failure  to 
comi)ly  with  this  requirement  in  any  one  year,  subjecting  the 
claim  "upon  whicli  such  failure  occurred  torelocation  Ijy  other 
parties,  the  same  as  if  no  previous  location  thereof  hiid  ever 
been  made,  unless  the  claimants  under  the  original  location 
shall  have  resumed  work  thereon  after  such  failure  and  before 
such  relocation.  The  first  annual  expenditure  upon  claims  of 
this  clas.s  should  have  been  performed  subsequent  to  May  10, 
3872,  and  prior  to  January  1,  1875.  From  and  after  January  1, 
187.'),  the  reciuired  amount  must  be  exiiendcd  auwmlhj  until 
patent  issues.  Hy  decision  of  the  honorable  Secretary  of  the 
Interior,  dated  March  4,  1879,  such  annual  expenditures  are  not 
xequired  subsequent  to  entry,  the  date  of  issuing  the  patent  cer- 
tificate being  the  date  contemplated  by  statute. 


208  LAND  OFFICE  RULES. 


Forfeilure.— 6.— Upon  the  failure  of  any  one  of  several  co- 
owners  of  a  vein,  lode  or  ledge,  which  has  not  been  entered,  t» 
contribute  his  proportion  (if  the  expenditures  necessary  to  hold 
Ihe  claim  or  claims  so  held  in  ownership  in  common,  the  co-own- 
ers who  have  performed  the  labor,  or  made  the  improvements, 
as  required  by  said  Kevised  Statutes,  may,  at  ihe  expiration  of 
the  year,  give  such  delinquent  co-owner  personal  notice  in 
writing,  or  notice  by  publication  in  the  newspaper  published 
nearest  the  claim,  for  at  least  once  a  week  for  ninety  days  ;  and 
if  upon  the  expiration  of  ninety  daysaftersuch  notice  in  writing, 
or  upon  the  expiration  of  one  hundred  and  eighty  days  after  the 
first  newspaper  imblication  of  notice,  the  delinquent  co-owner 
shall  have  tailed  to  contribute  his  proportion  to  meet  such  ex- 
penditures or  improvements,  his  interest  in  the  claim  by  law 
passes  to  his  co-owners,  who  have  made  the  expenditures  or 
improvements  as  aforesaid.  Where  a  claimant  alleges  owner- 
ship of  a  forleited  interest  under  the  foregoing  provision,  the 
sworn  statement  of  the  ])ublisher  as  to  the  facts  of  jaiblication, 
giving  dates  and  a  printed  coi)y  of  the  notice  published  should 
be  furnished,  and  the  claimant  must  swear  that  the  delinquent 
co-owner  failed  to  contribute  his  proper  proportion  within  the 
period  hxed  by  the  Statute. 

Patents  for  Lodes  or  Veins  heretofore  issned.— 7.— Eight.'? 
under  jiatents  for  veins  or  lodes  heretofore  granted  under  previous 
legislation  of  Congress,  are  enlarged  ljy  the  Kevised  Statutes  .so 
as  to  invest  the  patentee,  his  heirs  or  assigns,  with  title  to  all 
veins,  lodes  or  ledges,  throughout  their  entire  depth,  the  top  or 
apex  of  whicli  lies  within  the  end  and  side  boundary  lines  of 
his  claim  on  the  surlace,  as  patented,  extended  downward  ver- 
tically, although  such  veins,  lodes  or  ledges  may  so  far  depart 
from  a  jierpendicular  in  their  course  duwuward  as  to  extend 
outside  the  vertical  side-lines  of  the  claim  at  the  surface.  The 
right  of  possession  to  such  outside  parts  of  such  veins  or  ledges 
to  be  confined  to  such  i)ortions  thereof,  as  lie  between  vertical 
planes  drawn  downward  through  the  end-lines  oi  the  claims  at 
the  surlace,  so  contiinied  in  their  own  direction  that  such  planea 
will  intersect  such  exterior  parts  of  such  veins  or  ledges,  it  being 
expressly  provided,  however,  that  all  veins,  lodes  or  ledges,  the 
top  or  apex  of  which  lies  inside  such  surface  locations,  other 
than  the  one  named  in  the  patent,  which  were  adverseit/  claimed 
on  the  lOlh  May,  1872,  are  excluded  from  such  conveyance  by 
patent. 

8.— AppMoiUions  for  Patents  for  Mining  Claims  pendinpr  at 

the  date  of  the  Act  of  May  lU,  1872,  may  be  i)rosecuted  to  final 
decisi  .11  in  tlie  (ieneral  Land  Ollice,  and  where  no  adverse  rights 
are  affected  thereby,  patents  will  be  issued  in  pursuance  of  the 
provisions  of  the  Kevised  Statutes. 

Manner  of  Looatins  Claims  on  Veins  or  Lodes  after  May  10, 

1872.— y.— From  and  after   the  lOlh  May,  1872,  any  person  who 


LAND    OFFICE  RULES.  209 

is  a  citizen  of  the  United  States  or  who  liasdeeliircd  his  intention 
to  become  n  citizen,  may  locate,  record  and  hold  a  miniiitc  claim 
of  ft/tein  liujidrccl  linear  feet  along  the  course  of  any  mineral 
vein  or  lode  subject  to  location;  or  an  association  of  i)erson.s, 
severally  <iunlilied  as  above,  may  make  joint  location  of  such 
claim  of  fijiecii  hiiridred/eet,  but  iu  no  event  can  a  location  of  a 
vein  or  lode  made  subsequent  to  May  Id,  ^h'2,  exceed  fifteen 
hundred  feet  along  the  course  thereof,  whatever  may  be  the 
number  of  persons  composing  the  association. 

Viiltli,  Surfiirp  (Jrouiul.— 10.— With  regard  to  the  extent  of 
surface-ground  adjoining  a  vein  or  lode,  and  claimed  for  the 
convenient  working  thereof,  the  Kevised  .Statutes  provide  that 
the  lateral  extent  of  locations  of  veins  or  lodes  made  alter  May 
10,  1H7'2,  shall  in  no  case  exceed  three  liui.dred  Jeel  on  each  side  of 
the  middle  of  the  vein  at  the  xurfaee,  and  that  no  s\u'h  surface 
rights  shall  be  limited  by  .'uiy  mining  regulations  to  less  than 
twenty-live  feet  on  each  side  of  the  middle  of  the  vein  at  the 
Burfaco,  cxcejit  where  adverse  rights  existing  on  the  luth  May, 
187-',  may  render  s\icli  limitation  necessary  ;  the  end-lines  of  such 
claims  to  be  in  all  cases  parallel  to  each  other.  SSaid  lateral 
measurements  caniK>t  extend  beyond  tliree  hundred  feet  on 
«7/ie7- side  of  the  middle  of  the  vein  at  the  surface,  or  such  dis- 
tance as  is  allowed  by  local  laws.  For  example  :  -100  feet  cannot 
be  taken  on  one  side  and  .00  feet  on  the  other.  If,  however, 
300  feet  on  each  side  are  allnwed,  and  by  reason  of  prior  claims 
but  100  feet  can  be  taken  on  the  one  side,  the  locator  will  iiot 
be  restricted  to  less  than  .'iOO  feet  on  the  other  side  ;  and  when 
the  locatur  does  not  determine  by  exploration  where  the  middle 
of  the  vein  at  the  surface  is,  his  discovery  §haft  must  be  assumed 
to  mark  such  point. 

Sizp  »f  Claim.— n.— By  the  foregoing  it  will  be  perceived 
that  no  lode-claim  located  after  the  10th  May,  1872,  can  exceed  a 
parallelogram  fifteen  hnnlred  feet  in  lengtli  by  six  hundred  feet 
m  width,  but  whether  surface  ground  of  that  width  can  be  taken 
depends  ui)on  the  local  regulations  or  Stale  or  Territorial  laws 
in  force  in  the  several  mining  districts  ;  and  that  lo  such  local 
regulations  or  State  or  Territorial  laws  shall  limit  a  vein  or  lode 
claim  to  less  than  fificen  hundred  feet  along  the  course  thereof, 
whether  the  location  is  made  by  one  or  more  persons,  nor  can 
surface  rights  be  limited  to  less  than  fifty  feet  in  width,  unless 
adverse  claims  existing  on  the  10th  day  of  May,  1871?,  render  such 
lateral  limitation  necessary. 

nistrict  IJiilPs.—li?.— It  is  provided  by  the  Revised  .statutes 
that  the  miners  of  each  district  may  make  rules  and  regulations 
not  in  conflict  with  the  laws  of  the"United  States,  or  of  the  State 
or  Territory  in  which  such  districts  are  respectively  situated, 
governing  the  location,  manner  of  recording,  and  amount  of 
work  necessary  to  hold  ]>ossession  of  a  claim.  They  liki'wise  re- 
quire that  the  location  shall  be  so  distinctly  marked  on  the 
ground  that  its  boundaries  may  be  readily  traced.    This  is  a  very 


210  LAND  OFFICE  RULES. 

important  matter,  and  locators  cannot  exercise  too  much  care  ia 
-defining!;  their  locations  at  the  outset,  inasmuch  as  the  law  re- 
quires that  all  records  of  mining  locations  made  subsequent  to 
Way  10,  i.s''2,  sliall  contain  the  name  or  names  of  the  locators, 
the  date  of  tile  location,  and  such  a  description  of  the  cMm  or 
c  oiiii.s  located  by  reference  to  some  natural  object  or  permanent 
monument,  as  will  identify  the  claim. 

No  Ifpford  Roforp  Discovpry,— 18.— The  Statutes  provide  that 
nolodcch'im  .shall  be  recorded  until  after  the  discovery  of  a 
vein  or  lode  within  the  limits  of  tlie  claim  located,  the  object  of 
which  provision  is  evidently  to  prevent  tue  appropriation  of 
presumed  mineral  ground  for  speculative  purposes,  to  the  ex- 
clusion of /;rma7ic/e  prospectors  before  sutlicient  work  has  been 
done  to  determine  whether  a  vein  or  lode  really  exists. 

liOration.  Notice.— 14.— The  claimant  should  therefore,  prior 
to  locating  his  claim,  unless  the  vein  can  be  traced  upon  the  sur- 
tace,  sink  a  shaft,  or  run  a  tunnel  or  drift,  to  a  sutlicient  depth 
therein  to  discover  and  develop  a  mineral-bearing  vein,  lode  or 
crevice  ;  should  determine,  if  possible,  the  general  cour.se  of  such 
vein  in  either  direction  from  the  point  of  discovery,  by  which 
direction  he  will  be  governed  in  marking  the  boundaries  of  his 
claim  on  the  surface.  His  location  notice  should  give  the  course 
iind  distance  as  nearly  as  practicable  from  tbe  discovery  shaft  on 
the  claim,  to  some  permanent  well-known  points  or  objects,  .such, 
for  instance,  as  stone  monuments,  blazed  trees,  the  confluence  of 
streams,  point  of  intersection  of  well-known  gulches,  ravines  or 
roads.  j)roininent  buttes,  liills  &c  ,  which  may  be  in  the  immed- 
iate vicinity,  and  whiCh  will  serve  to  perpetuate  and  fix  the^ocu* 
of  the  claim,  and  render  it  susceptible  of  identification  from  the 
description  thereof  given  in  the  record  of  locations  in  the  dis- 
irict,  and  should  be  duly  recorded. 

Adjoinin?  Claims.  Staklnpr.— 15.— In  addition  to  the  fore- 
going data,  the  claimant  should  state  the  names  of  adjoining 
claims,  or.  if  none  adjoin,  the  relative  positions  of  the  nearest 
•claims  ;  should  drive  a  post  or  erect  a  monument  of  stones  at 
each  corner  of  his  surface  ground,  and  at  the  point  of  discovery 
or  discovery  shaft  sliould  fix  a  post,  stake  or  board,  upon  which 
should  be  designated  the  name  of  tlie  lode,  the  name  or  names 
•of  the  locators  the  niunber  f)f  feet  claimed,  and  in  which  direc- 
tion Irom  the  point  of  discovery  ;  it  being  essential  that  the  loca- 
tion notice  tiled  for  record,  inaddition  to  the  foregoing  descrip- 
tion, should  state  whether  the  entire  claim  of  fifteen  hundred 
feet  is  taken  on  one  side  of  the  point  of  discovery,  or  whether  it 
is  partly  upon  one  and  partly  upon  the  other  side  thereof,  and 
in  the  latter  case  how  many  feet  are  claimed  upon  each  side  of 
euch  discovery  point. 

Rocord  — IG. — Within  a  reasonable  time,  say  twenty  days 
After  the  location  shall  have  been  marked  on  the  ground,  or 


LAND  OFFICE  RULES.  211 

such  timo  as  is  allowed  by  the  local  laws,  notice  thereof,  ac- 
curately (li's<'ril)iiiK  the  claim  in  manner  aforesaid,  ^llollld  ba 
tiled  for  record  with  (he  [iroper  recorder  of  llie  district,  who  will 
thereupon  issue  the  usual  eertilicate  of  location. 

Animal  Labor  on  Npw  Locutions.— 17.— In  order  to  hold  tho 
pos.scs.sory  right  to  a  liication  luade  .^iiice  May  Id,  1.S72,  not  less 
than  one  hnudred  dollars'  wortli  of  labor  must  be  performed,  or 
improvi'ments  made  thereon  annually  until  entry  shall  have 
been  made.  Under  the  provisions  if  the  act  of  Congress,  ap- 
j)rovud  .lanuary  2-,  l^!■0,  tlie  lirst  ann\ial  e.xnenditure  becomes 
due  and  must  be  jicrformed  during  the  ealenciar  year  succeeding 
that  in  which  the  hiealion  was  made.  E.xpenditure  made  or 
labor  perfu'incd  prior  to  llie  lirst  day  of  January  succeeding  the 
dale  of  location  will  noi  be  considered  as  a  part  of,  or  ai>i)lie(I 
upon,  tlie  first  annual  e.xpenditure  required  bylaw.  Failure  to 
make  the  e.xiienditure  or  perfcjrm  the  labor  required  will  subject 
the  claim  to  relocation  by  any  oilier  uarty  having  ihe  necessary 
qualifications,  uidess  the  original  locator,  Ins  heirs,  assigns  or 
le^al  representatives,  have  resumed  work  thereou  after  such 
failure  and  before  such  relocaiion, 

18. — Tho  Exppndifiirps  Rcqiiirpd  upon  Mining  Claims   may 

be  made  from  the  surface  or  in  running  a  tunnel  for  the  develop- 
ment ot  such  claims,  the  Actof  February  11,  1«7.t,  providing  that 
where  a  person  or  company  has,  or  may,  run  a  tuiuiel  for  the 
puri)0se  of  developing  a  lode  or  lodes  owiu-d  by  said  person  or 
company,  the  money  so  e.xi)endi d  in  said  tunnel  shall  be  taken 
and  considered  as  expended  on  said  lod«  or  lodes,  and  such  per- 
son or  couipany  shall  not  be  requited  to  perform  work  ou  the 
surface  of  said  lode  or  lodes  in  order  to  hold  the  same. 

19. — Tho  Importance  of  attpndin:;  to  fliesfl  Details  in  the 
matter  of  location,  labi)r  and  expenditure  will  be  the  more  read- 
ily perceived  when  it  is  un<ierstood  that  a  failure  to  give  the 
fiubjeet  proper  atteutiou  may  invalidate  the  claim. 

TUANEL8. 

Tunnel  RiBh*R.—20. —  Section  2323  provides  that  where  a 
tunnel  is  run  for  the  develoiinent  o,''  a  vein  or  lode,  or  for  tho 
discovery  of  mines,  the  owners  ol  such  tunnel  shad  have  the  right 
of  pos,session  of  all  veins  or  lodes  within  ihiee  thousand  teet  from 
the  face  of  sucli  tunnel  on  the  line  thereof,  not  previously  known 
to  exist,  discovered  in  such  tunnel,  to  the  same  extent  as  if  dis- 
covered from  the  surface  ;  and  locations  on  the  line  of  such  tun- 
nel of  veins  or  lodes  not  apiiearing  (>n  the  surface,  made  by  other 
parties  after  the  commencement  of  the  tiuincl,  and  while  the 
same  is  being  pro-ccuted  with  reasonable  diligence,  shall  be 
invalid;  t)Ut  failure  to  prosecute  the  work  on  the  tiuuiel  for  six 
months  shall  be  considered  as  an  abandonment  of  the  right  to  alL 
uudiiicovered  veins  or  lodes  on  the  line  of  said  tuiniel. 


212  LAND  OFFICE  RULES. 


I.iiip  of  Tnnnol  Protocted.— 21.— The  effect  of  this  is  simply 
to  give  tlie  proprietors  of  a  miiiiiis;  tunnel  run  in  f^oort  faith  the 
possessory  riglit  to  fifteen  hundred  feet  of  any  blind  lodes  cut, 
discovered  or  intersected  by  such  tunnel,  which  were  not  pre- 
viously known  to  exist,  within  tliree  thousand  feet  from  the  face 
or  point  of  commencement  of  sucli  tunnel,  and  to  prohibit  other 
parlies,  after  the  commencement  of  the  tunnel,  from  prospecting 
for  and  making  locations  of  lodes  on  tlie  line  thereof  and  within 
said  distance  of  three  thousand  feet,  unless  such  lodes  appear 
upon  the  surface  or  were  previously  known  to  exist. 

22.— The  term  "face,"  as  used  in  said  section,  is  constraed 

and  held  to  mean  the  first  working  face  formed  in  the  tunnel, 
and  to  signify  the  point  at  which  the  tunnel  actually  enters 
cover;  it  being  from  this  point  that  the  three  thousand  feet  are 
to  be  counted,  upon  which  prospecting  is  prohibited  as  aforesaid. 

Tunnel  Nolice  .and  Stakes.— 2^.— To  avail  tliemselves  of  the 
benefits  of  this  provision  of  law,  the  proprietors  of  a  mining 
tunnel  will  be  required,  at  the  time  they  enter  cover  as  aforesaid, 
to  give  proper  notice  of  their  tunnel  location,  by  erecting  a  sub- 
stantial post,  bo'inl  or  monument  at  the  face  or  point  of  com- 
mencement thereof,  upon  which  should  be  posted  a  good  and 
sufficient  notice,  giving  the  names  of  the  parties  or  company 
claiming  the  tunnel  right;  the  actual  or  proposed  course  or 
direction  of  the  tunnel ;  the  lieight  and  width  thereof,  and  the 
course  and  distance  from  such  face  or  point  of  commencement 
to  some  permanent  well  known  object  in  the  vicinity  by  which 
to  fix  and  determine  the  locus  in  manner  heretofore  set  forth 
applicable  to  locations  of  veins  or  lodes,  and  at  the  time  of  post- 
ing such  notice  they  shall,  in  order  that  miners  or  prospectors 
may  be  enabled  to  determine  whether  or  not  they  are  within  the 
lines  of  the  tunnel,  establish  the  boundary  lines  thereof,  by 
stakes  or  monuments  placed  along  such  lines  at  proper  intervals, 
to  the  terminus  of  the  three  thousand  feet  from  the  face  or  point 
of  commencement  of  the  tunnel,  and  the  lines  so  marked  %vill 
•define  and  govern  as  to  the  specific  boundaries  within  which 
prospecting  for  lodes  not  previously  known  to  exist  is  prohibited 
while  work  on  the  tunnel  is  being  prosecuted  with  reasonable 
diligence. 

Iteconl  of  Tunnel.— 2i.— At  the  time  of  posting  notice  and 
marking  out  the  lines  of  the  tunnel  as  aforesaid,  a  full  and  cor- 
rect copy  of  such  notice  of  location  defining  the  tunnel  claim, 
must  be  filed  for  record  with  the  mining  recorder  of  the  district, 
to  which  notice  must  be  attached  the  sworn  statement  or  decla- 
ration of  the  owners,  claimants,  or  jirojectors  of  such  tunnel, 
setting  forth  the  facts  in  the  case  ;  stating  the  amount  expended 
by  themselves  and  their  predecessors  in  interest  in  prosecuting 
work  thereon  ;  the  extent  of  the  work  performed  ;  and  that  it  is 
bona  fide  their  intention  to  prosecute  work  on  the  tunnel  so 
located  and  deseribed,  with  reasonable  dilligence,  for  the  devel- 
opment of  a  vein  or  lode,  or  for  the  discovery  of  mines,  or  both, 
.as  the  case  may  be. 


LAND  OFFICE  RULES.  213 


This  notice  of  location  must  be  duly  recorded,  and,  with  tho 
said  sworn  statement  attached,  kept  on  the  recorder's  files  for 
future  reference. 

'25. — By  a  compliaiioe  with  the  foregoinsf  iiiiich  npcrtloss  dilll- 
culfjr  will  lie  tiviiiilfd,  and  the  way  for  the  adjustment  of  legal 
riglits  ac<iuired  in  virtue  of  said  section  2323  will  be  made  much 
more  easy  and  certain. 

Tunnel  not  Worked.— 20.— This  oCTice  will  take  particular 
care  that  no  improper  advantage  i.s  taken  of  this  provision  of  law 
by  parties  making  or  i)rofessing  to  make  tunnel  location.s,  osten- 
sibly for  tlie  purposes  named  in  the  statute,  but  really  for  the 
purpose  of  monopolizing  the  lands  lying  in  front  of  their  tunnels 
to  tlie  detriment  of  the  mining  interests  and  to  the  exclu-ion  of 
bona  fide  prospectors  or  miners,  but  will  hold  such  tunnel 
claimants  to  a  strict  compliance  with  the  terms  of  the  statutes  ; 
and  a  renmnnblc  (ii/it/eiic  on  their  i)art  in  prosecuting  the  work 
is  one  of  the  essential  conditions  of  their  implied  contract.  Neg- 
ligence or  want  ot  due  diligence  will  be  construed  as  working  a 
forfeiture  of  their  right  to  all  undiscovered  veins  on  the  line  of 
such  tunnel. 

APPLICATION   FOR    PATENT. 

Manner  of  Prorepding  to  Obtain  fovernment  Title  to  Vein 
or  Lode  rininis. — 27.— By  section  'lo2,'^  autliority  is  given  for 
granting  titles  for  mines  by  patent  from  the  government  to  any 
person,  association,  or  corporation,  having  the  necessary  quali- 
fications as  to  citizenshij)  and  holding  thu  right  of  possession  to 
a  claim  in  compliance  with  law. 

Idem.  Survey.- 28.— The  claimant  is  required  in  the  first 
place  to  have  a  correct  survey  of  his  claim  made  under  authority 
of  the  Surveyor  General  of  the  State  or  Territory  in  whicli  the 
claim  lies  ;  such  survey  to  show  with  accuracy  the  exterior  sur- 
face boundaries  of  the  "claim,  which  boundaries  are  required  to 
be  distinctly  marked  by  monuments  on  the  giound.  Four  plats 
And  one  copy  of  the  original  field  notes,  in  each  case,  will  be  pre- 
pared by  the  Surveyor  General ;  one  plat  and  the  original  field 
notes  to  be  retained  in  the  oflice  of  the  Surveyor  General,  one 
copy  of  the  plat  to  be  given  the  claimant  for  posting  upon  the 
claim,  one  plat  and  a  copy  of  the  field  notes  to  be  given  the 
claimant  for  filiner  with 'the  proper  register,  to  be  finally  trans- 
mitted by  that  otflcer,  with  other  papers  in  the  case,  to  this  oflice, 
and  one  plat  to  l)e  sent  by  the  iSurveyor  General  to  the  re.gisterof 
the  proper  land  district  to  be  retained  on  his  files  for  future  refer- 
ence. 

Posting  Plfit  on  the  Claim.— 20.— The  claimant  is  then  re- 
quired to  post  a  cop.v  of  the  plat  of  such  survey  in  a  conspicuous 
place  upon  the  claim,  together  with  notice  of  his  intention  to  ap- 


214  LAND  OFFICE  RULES. 

ply  for  a  patent  therefor,  which  notice  will  give  the  date  of  post- 
ing, the  name  of  the  claimant ,  the  name  of  the  claim,  mine  or 
lode  ;  the  mining  district  and  county  ;  whether  the  location  is  of 
record,  and,  if  so,  where  the  record  may  be  fonnd  ;  the  number 
effect  claimed  along  the  vein  and  tlie  presumed  direction  there- 
of; the  number  of  feet  claimed  on  the  lode  in  each  direction 
from  the  point  of  discovery,  or  other  well-defined  place  on  the 
claim  ;  the  name  or  names"  of  adjoining  claimants  on  the  same 
or  other  lodes ;  or,  if  none  adjoin,  the  names  of  the  nearest 
claims,  &c. 

Land  Office  Posting.— 30.— After  posting  the  said  plat  and 
notice  upon  the  premises,  the  claimant  will  tile  with  the  proper 
register  and  receiver  a  copy  of  such  plat,  and  the  field  notes  of 
survey  of  the  claim ;  accompanied  by  the  affidavit  of  at  least 
two  credible  witnesses  that  such  plat  and  notice  are  posted  con- 
spicuously upon  the  claim,  giving  the  date  and  place  of  such  post- 
ing ;  a  copy  of  the  notice  so  posted  to  be  attached  to,  and  form  a 
part  of,  .said  affidavit. 

Statement  of  Claim.— 31  —Attached  to  the  field  notes  so  filed, 
must  be  the  sworn  statement  of  the  claimant  that  he  has  the 
possessory  right  to  the  premises  therein  described,  in  virtue  of  a 
compliance  by  himself  (and  by  his  grantors,  if  he  claims  by  pur- 
chase) with  the  mining  rules,  regulations,  and  customs  of  the 
mining  district.  State  or  Territory  in  which  the  claim  lies,  and 
with  the  mining  laws  of  Congress  ;  s\ich  sworn  statement  to  nar- 
rate briefly,  but  as  clearly  as  possible,  the  facts  constituting  such 
compliance,  the  origin  of  his  possession,  and  the  basis  of  his 
claim  to  a  patent. 

Abstract  of  Title.— 32.— This  affidavit  should  be  supported 
l)y  appropriate  evidence  from  the  mining  recorder's  office  as  to 
his  possessory  right,  as  follows,  viz  :  Where  he  claims  to  be  a  lo- 
cator, a  full,  "true,  and  correct  copy  of  such  location  should  be 
furnished  as  the  same  appears  upon  the  mining  records,  such 
copy  to  be  attested  by  the  seal  of  the  recorder,  or  if  he  has  no 
seal,  then  he  should  make  oath  to  the  same  being  correct,  as 
Bhown  by  his  records  ;  where  the  applicant  claims  as  a  locator  iu 
company  with  others  who  have  since  conveyed  their  interests  in 
the  lode  to  him,  a  copy  of  the  original  record  of  location  should 
be  filed,  together  with  an  abstract  of  title  from  the  proper  re- 
corder, under  seal  or  oath  as  afore.said,  tracing  the  co-locator's 
po.sses.sory  rights  in  the  claim  to  such  applicant  for  patent ; 
where  the  applicant  claims  only  as  a  purchaser  for  valuable  con- 
Bideration,  a  copy  of  the  location  record  must  be  filed,  under  seal 
or  upon  oath  as  afore.said,  with  an  abstract  of  title  certified  as 
above  by  the  proper  recorder,  tracing  the  right  of  possession  by  a 
continuous  chain  of  conveyances  from  the  original  locators  to- 
the  applicant,  also  certifying  that  no  c(mveyances  aflecting  the 
title  to  the  claim  in  question  appear  of  record  in  his  office  other 
than  tho.se  set  forth  in  the  accompanying  abstract. 


LAND  OFFICE  RULES.  215 

The  date  of  said  recorder's  certificate  should  cover  the  date 
of  application  for  patent  in  the  laud  otlice. 

Lost  Hooords.— 33.— In  the  event  of  the  miniriK  records  in 
anv  case  havinR  been  destroyed  by  fire  or  otherwise  lost,aflidavit 
of  the  fact  should  be  made,  and  secondary  evidence  of  possessory 
title  will  be  received,  which  may  consist  of  the  aflidavit  of  the 
claimant,  supported  bv  those  of  any  other  parties  cognizant  of 
the  facts  relative  to  his  location,  occupancy,  possession,  improve- 
ments, etc  ;  and  in  such  case  of  lost  records,  any  deeds,  certifi- 
cates of  location  or  purchase  or  other  evidence  which  may  be  ia 
the  claimants  pos.scsslou,  and  tend  to  establish  his  claim,  should 
be  tiled. 

Publishpr's  Contract.— 34.— Upon  the  receipt  of  these  papers 
the  rei;ister  will,  at  the  expense  of  the  claimant  ( who  must  fur- 
nish the  aRreement  of  the  puldishcr  to  hold  applicant  for  patent 
alone  responsible  for  charges  of  publication  ),  publish  a  notice  of 
Buch  ttp)>lication  for  the  period  of  si.xty  days,  in  a  newspaper 
published  nearest  to  the  claim  ;  and  will  post  a  copy  of  such 
notice  iti  his  ollice  for  the  same  period.  In  all  cases  sixty  days 
must  intervene  between  the  tirst  and  the  last  insertion  of  the 
notice  in  such  newspaper.  When  the  notice  is  published  in  a 
weekli/  ncwspauerten  consecutive  insertions  are  necessary  ;  when 
in  a  dailf/  newspaper  the  notice  must  appear  in  each  issue  for 
the  required  period. 

Notice  Must  be  Full.— 35.— The  notices  so  published  and 
posted  must  be  as  full  and  complete  as  pcssible.  and  embrace  all 
the  data  given  in  the  notice  posted  upon  the  claim. 

SG.—foo  much  cnrp  cannot  bo  cxcrcisoil  in  tbo  preparation 
of  these  notices,  inasmuch  as  upon  thuir  accuracy  and  complete- 
nes.s  will  depend,  in  a  great  measure,  the  regularity  and  validity 
of  the  whole  proceedings. 

Surveyor  General's  Certificate  of  §500.   ImproTenicnts.— 37.— 

The  claimant,  either  at  the  time  of  filing  these. papers  with  the 
register,  or  at  any  time  during  the  sixty  days'  publication,  ia 
required  to  file  a  certificate  of  the  Surveyor  General  that  not  less 
than  five  hundred  dollars'  worth  of  labor  has  been  expended  or 
improvements  made  upon  the  claitn  by  the  applicant  or  his 
jcrantors  ;  that  the  plat  tiled  bv  the  claimant  is  correct  ;  that  tho 
field  notes  ot  the  survey,  as  tiled,  furnish  such  an  acrnrata 
description  of  the  claim  as  will,  if  incorporated  into  a  patent, 
serve  to  fully  identifv  the  premises,  and  that  such  reference  is 
made  therein  to  natiiral  objects  or  permanent  monuments  as 
will  perpetuate  and  fix  the  locus  thereof. 

Idem  —38.— It  will  be  the  more  convenient  way  to  have  this 

certificate  indorsed  bv  the  Surveyor  General,  both  upon  the  plat 
and  field  notes  of  surVcy  filed  by  the  claimant  as  aforesaid. 


216  LAND  OFFICE  RULES. 

Proof  of  Plat  Kpiiiainins  Posted.— 39— After  the  sixty  day-s"^ 
period  of  new.spaper  jmbliciit ion  has  expired  the  claimant  will 
tile  his  affidavit,  showing  that  the  plat  and  notice  atoresaid 
remained  cons^picuously  posted  upon  the  claim  sought  to  be  pat- 
ented during  said  s-ixty  days'  iiublicatiou,  giving  the  dates. 

Entry.  StBfrmeiit  of  Sums  Paid.— 10.— Upon  the  filing  of 
this  nffliavitthe  register  will,  if  no  adverse  claim  was  filed  in 
his  office  during  the  ^sixty  (<iO)  days  from  date  of  first  publication, 
permit  the  claimant  to  pay  for  the  land  according  to  the  area 
given  in  the  plat  and  field  notes  of  survey  aforesaid,  at  the 
rate  of  five  dollars  for  each  acre  and  five  dollars  for  each 
fractional  part  of  an  acre,  the  receiver  issuing  the  usual 
duplicate  receipt  therefor.  The  claimant  will  also  make  a 
sworn  statement  of  all  charges  and  fees  paid  by  him  for 
publication  and  survevs,  together  with  all  fees  and  money  paid 
the  regi.ster  and  receiver  of  the  land  office ;  after  which  the 
whole  matter  will  be  forwarded  to  the  Commissioner  of  the 
General  Land  Office  and  a  patent  issued  thereon  if  found  reg- 
ular. 

Proof  of  Posting  ill  Land  Oflicp.— 41.— In  sending  up  the 
papers  in  the  case  the  register  must  not  omit  certifying  to  the 
fact  that  the  notice  was  posted  in  his  office  for  the  full  period  of 
.sixty  days,  .such  certificate  to  state  distinctly  when  such  posting 
was  done  and  how  long  continued. 

42.— Thft  consocntiTO  sorios  of  niinibt-rs  of  mineral  entries 
must  be  continued,  whether  thesameare  of  lode  or  placer  claims. 

Series  of  Numbrrs.- 4,".— The  Surveyor  General  must  con- 
tinue to  designate  all  surveyed  mineral  claims  as  heretofore  by  a 
progressive  series  of  numbers,  beginning  with  lot  No  37  in  each 
township  ;  the  claim  to  be  so  designated  at  date  of  filing  the  plat, 
field  notes,  etc  ,  in  addition  to  the  local  designation  of  the  claim;^ 
it  being  required  in  all  cases  that  the  plat  and  field  notes  of  the 
survey  of  the  claim  must,  in  addition  to  the  reference  to  perma- 
nent objects  in  the  neighborhood,  describe  the  locus  of  the  claim 
with  reference  to  the  lines  of  public  surveys  by  a  line  connecting 
a  corner  of  the  claim  with  the  nearest  public  corner  of  the 
United  States  surveys,  unless  such  claim  be  on  unsurveyed  lands 
at  a  remote  distance  from  such  jiublic  corner,  in  which  latter 
case  the  reference  by  course  and  distance  to  permanent  objects 
in  the  neighborhood' will  be  a  sufficient  designation  by  which  to 
fix  the  lo'vx  until  the  public  surveys  shall  have  been  closed  upon 
its  boundaries. 

ADVERSE  CLAIMS. 

44.— Section  2326  pniTides  for  adverse  rlaiins,  fixes  the  time 
within  which  they  shall  be  filed  to  have  legal  efi'ect,  and  pre- 
scribes the  manner  of  their  adjustment. 


LAND  OFFICE  RULES.  217 

Sixty  Pa?  Poriofl.  Roquisitps.  —15.  —  Said  section  requires 
that  the  adverse  claim  shall  be  tiled  during  the  period  of  piibli- 
•cation  of  iiotiee  when  published  in  a  daily  newspaper,  and  when 
published  in  a  weekly,  during  the  i)eriod  of  sixty  (liii)  days  from 
date  of  first  jmljlication  ;  that  it  must  be  on  the  oath  of  the  ad- 
verse claimant ;  and  that  it  must  show  the  "  nature,"  the  '^boun- 
daries," and  the  "extent''  of  the  adverse  claim. 

46.— In  orilor  that  this  section  of  law  may  be  properly  car- 
ried into  efTect,  ihe  l"ollowing  is  communicated  for  the  informa- 
tion of  all  concerned : 

60  Days. — 17.— An  adverse  mining  claim  must  be  filed  with 
the  register  of  the  same  land  oHice  with  whom  the  application 
for  patent  was  filed,  or  in  his  ab.sence  with  the  receiver,  and  with- 
in the  sixty  days'  period  of  newspaper  publication  of  notice. 

Veritlration. — IS.— The  adverse  notice  must  be  duly  sworn  to 
by  the  per.son  or  persons  making  the  same  before  an  officer  au- 
thorized to  administer  oaths  *  or  before  the  register 
or  receiver :  it  will  fully  set  forth  the  nature  and  ex- 
tent of  the  interference  or  conflict;  whether  the  adverse  party 
claims  as  a  purchaser  for  valuable  consideration  or  as  a  locator  ; 
if  the  former,  a  certified  copy  of  tlie  original  location,  the  origi- 
nal conveyance,  a  duly  certified  copy  thereof,  or  an  abstract  of 
title  from  "the  otlice  of  the  proper  recorder  should  be  furnished  or 
if  the  transaction  was  a  mere  verbal  one  he  will  narrate  the  cir- 
cumstances attending  the  purchase,  the  date  thereof,  and  the 
amount  paid,  which  factsshonld  be  .supported  by  the  alUdavit  of 
one  or  more  witnes.ses,  if  any  were  present  at  the  time,  and  if  he 
claims  as  a  locator  he  must  file  a  duly  certified  copy  of  the  loca- 
tion from  the  office  of  the  proper  recorder. 

Plat. — 19.— In  order  that  the  "boundariex"  and  "ext'fit"  of 
the  claim  may  be  shown,  it  will  be  incumbent  upon  the  adverse 
claimant  to  tile  a  plat  showing  his  entire  claim,  its  relative  situ- 
ation or  position  with  the  one  against  which  he  claims,  and  the 
extent  of  the  conflict.  This  plat  must  be  mado  from  an  actual 
survey  by  a  United  States  deputy  surveyor,  who  will  officially 
certify  thereon  to  its  correctness  ;  and  in  addition  there  must  be 
attached  to  such  plat  of  survey  a  certificate  or  sworn  statement 
by  the  surveyor  as  to  the  approximate  value  of  the  lab  )r  per- 
formed or  improvements  made  ujiDU  the  claim  by  the  adverse 
party  or  his  predecessors  in  interest,  and  the  plat  inust  indicate 
the  f)osition  of  any  shafts,  tunnels  or  other  improvements,  if  any 
such  exist,  upon  the  claim  of  the  party  opposing  the  application, 
and  by  which  party  said  improvements  were  made. 

Notice  of  AdTorse.— fiO.  —  Upon  the  foregoing  being  fded 
within  the  sixty  days  as  aforesaid,  the  register,  or  in  his  absence 
—  -  , 

After  the  *  the  original  rule  read  "  within  the  Land  Dis- 
trlct"~but  see  Act  of  April  26,  ISs'J,  post  p. . 


2  I  8  LAND  OFFICE  RULES. 

the  receiver,  will  give  notice  in  writinj?  to  both  parties  to  the  con- 
test that  such  adverse  claim  has  been  liled,  informing  them  that 
the  party  who  filed  the  adverse  claim  will  be  required  within 
thirty  days  from  the  date  of  such  tiling  to  commence  proceedings 
in  a  court  of  competent  jurisdiction  to  determine  the  question  of 
right  of  possession,  and  to  prosecute  the  same  with  reasonable 
diligence  to  final  judgment,  and  that  should  .such  adverse  claim- 
ant fail  to  do  so,  his  adverse  claim  will  be  considered  waived, 
and  the  application  for  patent  be  allowed  to  proceed  upon  its 
merits. 

Stays  Procppdings,— 51— When  an  adverse  claim  is  filed  as 
aforesaid,  the  register  or  receiver  will  indorse  upon  the  same  the 
precise  date  of  filing,  and  preserve  a  record  of  the  date  of  notifi- 
cations issued  thereon  :  and  thereafter  all  proceedings  on  the  ap- 
plication for  patent  will  be  suspended,  with  the  exception  of  the 
completion  of  the  publication  and  posting  of  notices  and  plat, 
and  the  filing  of  the  necessary  proof  thereof,  until  the  controversy 
shall  have  been  adjudicated  in  court,  or  the  adverse  claim 
waived  or  withdrawn. 

52. — TliP  proceedinjjs    aftpr  rpndition  of  judgment  by    the 

court  in  such  case  are  so  clearly  defined  by  the  act  itself  as  to 
render  it  unnecessary  to  enlarge  thereon  in  thLs  place. 

PLACERS. 

Application  for  Patent  on  Placer  Claims.— 53. — The  proceed- 
ings to  obtain  patents  for  claims  usually  called  placers,  includ- 
ing all  forms  of  deposit,  arc  similar  to  the  proceedings  prescribed 
for  obtaining  patents  for  vein  or  lode  claims ;  but  where  f-aid 
placer  claim  .shall  be  upon  surveyed  lands,  and  conform  to  legal 
subdivisions,  no  further  survey  or  plat  will  be  required,  find  all 
placer  mining  claims  located  after  May  10,  1872,  shall  conform  as 
nearly  as  practicable  with  the  United  States  system  of  public 
land  .surveys  and  the  rectangular  subdivisions  of  such  surveys 
and  no  such  location  shall  include  more  than  twenty  acres  for 
each  individual  claimant :  but  where  placer  claims  cannot  be 
conformed  to  legal  subdivisions,  survey  and  plat  shall  be  made 
as  on  unsurveyed  lands.  But  where  .such  claims  are  located  pre- 
vious to  the  public  surveys,  and  do  not  conform  to  legal  subdivi- 
sions, survey,  plat,  and  entry  thereof  may  be  made  according  to 
the  boundaries  thereof,  i^rovided  the  locatiou  is  in  all  respects 
legal. 

Idem.  Price.  54.— The  proceedings  for  obtaining  patents  for 
veins  or  lodes  having  already  been  fully  given,  it  will  not  be  ne- 
cessary to  repeat  them  here  ;  it  being  thought  that  careful  atten- 
tion thereto  by  applicants  and  the  local  officers  will  enable 
them  to  act  understandingly  in  the  matter  and  make  such  slight 
modifications  in  the  notice,  or  otherwise,  as  may  be  necessary  in 
view  of  tiic  different  nature  of  the  two  classes  of  claims,  placer 
claims  being  fixed,  however,  at  two  dollars  and  fifty  cents  per 
acre,  or  fractional  part  of  an  acre. 


LAND  OFFICE  RULES.  219 

10  Acre  Lo(s.— r)').— By  section  2330,  authority  is  piven  for 
the  subdivision  of  forty-acre  Ifgul  subdivisions  into  tc-n  acre  lots, 
wliich  is  intended  for  the  KreiUer  convenience  of  miners  in  scgre- 
guiiiifr  their  chiinis  both  fioui  one  another  and  from  intervening 
agricultural  lands. 

No  Survoy  in  Such  Case.— no.— It  i'^  held,  therefore,  that  un- 
der a  r)rop>-r  construction  of  the  law  these  ten-acre  lots  in  mining 
districts  should  be  considered  and  dealt   with,  to  all  intents  and 

f>urposes,  as  legal  s\ibdivisions,  and  that  an  apjdicant  having  a 
epal  claim  which  conforms  lo  one  or  more  of  these  ten  acre  lots, 
cither  adjoining  or  corneriiig,  may  make  entry  thereof,  after  tho 
usual  proceedings,  without  further  survey  or  plat. 

Mode  of  Entry  of  Such  Lots.— 57.— In  ca.ses  of  this  kind,  how- 
ever, the  notice  given  of  the  application  must  be  very  specific 
and  accurate  in  description,  and  as  the  forty-acre  tracts  may  bo 
•subdivided  into  ten-acre  lots,  either  in  the  f()rm  of  s  luaresof 'ten 
by  ten  chains,  or  of  iiarallelograms  five  by  twenty  chains,  so  long 
as  tho  lines  are  parallel  and  at  right  angles  with"  the  lines  of  the 
public  surveys,  it  will  be  necessary  that  the  notice  and  applica- 
tion state  specifically  what  ten-acre  lots  are  sought  to  be  patent- 
ed, in  addi'.ion  to  the  other  data  required  in  the  notice. 

Description  —.58.— Where  the  ten  acre  sub-division  is  in  the 
form  of  a  sijuare,  it  mav  be  described,  lor  instance,  as  the  "S. 
E.  \i  of  the  y  W.  14  of  N.  W.  14."  or,  if  in  the  form  of  a  parallel- 
ogram as  aforesaid,  it  mav  be  described  as  the  '■  W.  %  of  the  VV. 
^i  of  the  .s.  W.  M  of  the  N  W.  Y^,  (or  the  N.  V,  of  the  S.  y,  of  tho 

N.  E.  l^  of  the  S.  E.     )  of  section  .  township  ,  range 

,"  as  the  case  may  be  ;  but,  in  addition  to  this  description 

of  the  land,  the  notice  must  give  all  the  other  dalnilxixX,  is  re- 
quired in  a  mineral  application,  by  which  parties  may  be  put  on 
inquiry  as  to  the  premises  sought  to  be  patented.  The  proof  sub- 
mitted with  applications  for  claims  of  this  kind  must  show 
clearly  the  character  and  the  exter.t  of  tho  improvements  upon 
tlie  premises.  Inasmuch  as  the  Surveyor  General  has  no  duty  to 
perform  in  connection  with  the  entry  of  a  Placer  flaim  of  legal 
sub  divisiotis,  the  proof  of  improvements  must  show  their  value 
to  be  not  less  than  five  hundred  dollars,  and  that  they  were 
made  by  the  applicant  for  patent  or  his  grantors. 

Lode  in  Placer.— 59.— Applicants  for  patent  to  a  placer  claim, 
■who  are  also  in  possession  of  a  known  vein  or  lode  included 
thereiii.  must  state  in  their  application  that  the  y^lacer  includes 
such  vein  or  lode.  TIic  published  and  posted  notices  must  also 
include  such  statement  ;  and  the  vein  or  lode  mu-st  be  .surveyed 
and  marked  upon  the  nlat :  the  field  notes  and  plat  giving  the  area 
of  the  lode  claim  or  claims  and  the  area  of  tlie  i>laccr  separately. 
If  veins  or  lodes  lying  within  a  jilacer  location  are  owned  by 
other  parties,  the  fact  should  be  distinctly  stated  in  the  applica- 
tion for  patent,  and  in  all  the  notices.    It  should  be  remembered 


220         LAND  OFFICE  RULES. 

that  an  application  which  omits  to  inchifle  an  application  for  a 
known  vein  or  lode  therein,  must  be  construed  ivs  a  conclusive 
declaration  that  the  applicant  has  no  right  of  possession  to  the 
vein  or  lode.  Where  there  is  no  ki.own  lode  or  vein,  the  fact 
must  appear  by  the  affidavit  of  claimant  and  one  or  more  wit- 
nesses. 

60. — When  an  adverse  cljiini  is     ''  '1  to  a  placer  application, 

the  proceediuKs  arc  the  same  as  i.i  lue  case  of  vein  or  lode 
claims,  already  described. 

QUANTITY  OF  PLACER  GROUND  SUl-IK'T  TO  LOCATION. 

({iiiintily  of  Placer  (iroiind  *ul).!ct  to  Location. — 01. — By  sec- 
tion t;;;;.ii  it  is  declared  that  no  location  of  a  jdaeer  claim  made 
after  July  i),  1870,  shall  exceed  one  h.undred  and  sixty  acres  for 
any  one  person  or  a.ssociation  of  persons,  which  location  shall 
conform  to  the  United  States  surveys. 

fonfornialion  to  Piiltlic  Surveys —02. — Section 'J331  provides 
that  all  ])lacer  mining  claims  located  after  May  10,  1872,  shall 
conform  as  nearly  as  practicable  with  the  United  States  system 
of  jjulilic  surveys  and  the  subdivisions  of  such  surveys,  and  n  a 
such  locations  shall  include  more  than  twenty  acres  for  each 
individual  claimant. 

Limit  to  Size  of  Location. — 03. — The  foregoing  provisions  of 
law  are  construed  to  mean  that  after  the  9th  day  of  July,  1870, 
no  location  of  a  i)lacer  claim  can  be  made  to  exceed  one  hundred 
and  sixty  acres,  whatever  may  be  the  number  of  locators  asso- 
ciated together,  or  whatever  the  local  regulations  of  the  district 
may  allow;  and  that  from  and  after  May  10,  1872,  no  location 
made  l)y  an  individual  can  exceed  twenty  acres,  and  no  location 
made  by  an  as.sociation  ot  individuals  can  exceed  one  hundred 
and  sixty  acres,  which  location  of  one  hundred  and  sixty  acres 
cannot  be  made  Vjy  a  less  number  than  eight  bona  fide  locators; 
and  no  local  laws  or  mining  regulations  can  restrict  a  placer 
location  to  less  than  twenty  acres,  although  the  locator  is  not 
compelled  to  take  .so  much. 

IIow  Located  —64. — The  regulations  hereinbefore  given  as  to- 
the  manner  of  marking  locations  on  the  ground,  and  placing  the 
same  on  record,  must  be  ob.served  in  the  case  of  placer  locations, 
so  far  as  the  same  are  applicable  ;  the  law  requiring,  however, 
that  where  placer  claims  are  upon  surveyed  public  lands  the 
locations  must  hereafter  be  made  to  conform  to  legal  sub-divis- 
ions thereof  as  near  as  practicable. 

Proof  of  Possession. — 65— With  regard  to  the  proofs  neces- 
sary to  establish  the  possessory  right  to  a  placer  claim,  section 
2.3.32  provides  that  "where  such  person  or  association,  they 
and  their  grantors,  have  held  and  worked  their  claims  for  a 
period  equal  to  the  time  prescribed  by  the  statute  of  limita- 


LAND  OFFICE  RULES.  22  1 

tions  for  niiniiipr  clnims  of  the  Slate  or  Territory  wliero  the  saiuc 
mny  bo  situiite'l,  evi<k'iiee  of  Mich  iiossession  and  workiiiK  of  the 
chiims  for  t-ueh  ])erio(l  shall  be  suflicieiit  to  establi.-U  a  lifht  (o  a 
patent  thereto  under  this  chapter,  in  the  absence  ol  any  adverse 
claim." 

Idem.  Lost  Refonls.-CG.— This  provision  of  law  will  greatly 
les.sen  the  burden  of  proof,  more  especially  in  the  case  of  old 
claims  located  many  years  since,  the  records  of  which,  in  many 
cases,  have  been  destroyed  by  lire,  or  lost  in  other  ways  during 
the  lajise  of  time,  but  concerning  the  pos.sessory  right  to  which 
all  controversy  or  litigation  has  long  been  settled. 

Possession  Without  Uocord  Titl'.— 07.— When  an  applicant 
desires  to  make  his  jiroof  of  possessory  right  in  accordance  with 
this  provi.^ioii  of  law,  you  will  not  require  him  to  i)r<)duce  evi- 
dence of  location,  copies  of  conveyances,  or  abstracts  of  title, 
as  in  other  cases,  but  will  require  him  to  furnish  a  duly  certitied 
copy  of  the  statute  of  limitations  of  mining  claims  for  the  .State 
or  Territory,  together  with  his  sworn  statement  giving  a  clear 
and  succinct  narration  of  the  facts  as  to  the  origin  of  his  title, 
and  likewise  as  to  the  continuation  of  his  possession  of  the  iiiin- 
ing  ground  covered  by  his  application;  the  area  thereof;  the 
Jiature  and  extent  of  tlie  mining  that  has  been  done  thereon  ; 
whether  there  has  been  any  oi>i)Osition  to  his  po.ssession,  or  liti- 
gation wiih  regard  to  his  claim,  and,  if  so,  when  the  .'Jamc 
ceased  ;  whether  such  cessation  was  caused  by  compromise  or 
by  judicial  decree,  and  any  additional  facts  within  the  claim 
aiit's  knowledge  having  a  direct  bearing  upon  his  possession  and 
bona  fides  which  he  may  desire  to  submit  in  support  of  his 
claim. 

fertiflfate  of  No  Snit.—fAS.— There  should  likewise  be  filed  a 
certificate,  under  seal  of  the  court  having  jurisdiction  of  raining 
cases  within  the  judicial  district  embracing  the  claim,  that  no 
suit  or  action  ol  any  character  whatever  involving  the  right  of 
possession  to  any  portion  of  the  claim  applied  for  is  pending, 
and  that  there  has  beenno  litigation  before  said  court  atlecting 
the  title  to  said  claim  or  any  part  thereof  for  a  period  equal  to 
the  time  fixed  by  the  statute  of  limitations  for  mining  claims  in 
the  State  or  Territory  as  aforesaid,  other  than  that  which  has 
been  finally  decidediu  favor  of  the  claimant. 

DIsintprpstfd  Proof— CO.— The  claimant  should  support  his 
narrative  of  fi.cts  relative  to  his  possession,  occui>ancy  and  im- 
provements by  corroborative  testimony  of  any  disinterested  per- 
son or  persons  ol  credibility  who  may  be  cognizant  of  the  facts  in 
the  case  and  are  capable  of  testifying  understandiugly  iu  the 
premises. 

Full  Proofs.— 70.— It  will  be  to  the  advantage  of  claimants 
to  make  their  proofs  as  full  and  complete  as  practicable. 


222  LAND  OFFICE  RULES. 


MILL  SITES. 

Two  Classes— 71.— Section  2337  provides  that  "where  non- 
mineral  land  not  eoiitiguou«  to  the  vein  or  lode  i.s  used  or  occu- 
pied by  the  proprietor  of  such  vein  or  lode  for  mining  or  millin| 
purpose  B,  such  iion-Mdjncent  surface  ground  may  be  embraced 
and  included  in  a'l  application  for  a  patent  for  such  vein  or  lode, 
and  the  same  may  be  patented  therewith,  subject  to  the  same 
preliminarv  reiinirements  as  to  survey  and  nntiee  as  are  applica- 
ble to  veins  or  hides;  but  no  location  hereafter  made  of  such 
non  adiacent  land -hall  exceed  five  acres,  and  payment  for  the 
same  must  be  made  at  the  same  rate  as  fixed  by  this  ehapter  for 
the  sup  rficies  of  the  lode.  The  owner  of  a  qnariz  mill  or  reduc- 
tion works,  not  owning  a  mine  in  connection  therewith,  may  also 
receive  a  patent  for  his  mill  site,  as  provided  ia  this  section." 

72— To  avail  thomselTesof  this  proTision  of  law,  parties  hold- 
ing the  pos.sessory  right  to  a  vein  or  lode,  and  to  a  piece  of  non- 
mineral  laud  not  contiguous  thereto,  for  mining  or  milling  pur- 
poses, not  exceeding  the  quantity  allowed  for  .such  purpose  by 
secti  >n  23H7  United  .States  Revised  Statutes,  or  prior  laws,  under 
which  the  land  was  appropriated,  the  proprietors  of  such  vein 
or  lode  mav  file  in  the  proper  land  office  their  application  for  a 
patent,  under  oath,  in  manner  already  set  forth  herein,  which 
application,  together  with  the  plat  and  field  notes,  may  include, 
embrace,  and  describe,  in  addition  to  the  vein  or  lode,  such  non- 
contiguous mill  sit'",  and  after  due  proceedings  as  to  notice,  &c., 
a  patent  will  be  issued  conveying  the  same  as  one  claim. 

Lots  "  \"  and  "B  "—73  --In  making  the  survey  in  a  case  of 
this  kind,  the  lode  claim  .should  be  described  in  the  i)lat  and 
field  notes  as  "Lot  No.  37.  A."  and  the  mill  site  as  'Lot  No.  37  H," 
or  whatever  may  be  its  appropriate  numerical  designation  ;  the 
course  a'  d  distance  from  a  corner  of  a  mill  site  to  a  corner  of  the 
lode  claim  to  be  in  ariably  given  in  such  plat  and  fieM  notes, 
and  a  copy  of  the  plat  and  notice  of  anplication  for  patent  must 
be  conspiciiouslv  posted  apon  he  mill  site  as  well  as  upon  the 
vein  or  lode  for  the  statutory  period  of  sixty  days  In  making 
the  entry  no  separate  receipt  or  certificate  need  be  issued  for  the 
mill  site,  but  the  whole  area  of  both  lode  and  mill  site  will  be 
embraced  in  one  entry,  the  price  being  five  dollars  for  each  acre 
and  fractional  part  of  au  acre  embraced  by  such  lode  and  mill 
site  claim. 

Mill  Site  Withont  Lode.— 74.— In  case  the  owner  of  a  quartz 
mill  or  reduction  works  is  not  the  owner  or  claimant  of  a  vein  or 
lode,  the  la^v  permits  him  to  make  application  therefor  in  the 
Fame  manner  prescribed  herein  for  mining  claims,  and  after  due 
notice  and  p^oceeding^.  in  the  ab-ence  of  a  valid  adverse  filing, 
to  enter  and  receive  a  patent  for  his  mill  site  at  said  price  per 
acre. 


LAND  OFFICE  RULES.  223 

Proof  of  Non-Mineral  Character  and  of  Use  by  Applicant. — 

75. — 111  every  ciise  there  must  lie  sutisfuctory  i)r()()t'  that  tlie  land 
claimed  lis  11  mill  .--ite  is  not  iniii'Tiil  in  cliuriieter,  also  sliowing 
how  iiml  in  wliat  maimer  .Miid  mill  .-ite  is  iisetl  or  oceu|iie(l  by 
Bftlil  claimant  for  miiiiiiK  or  milliiiK  purposes,  whieli  proof  may, 
where  the  matter  is  luiiiiiostioiied,  con.sist  of  the  sworn  statement 
of  the  claimant,  supponed  hy  that  of  one  or  more  disinterested 
persons  capable  from  acnuaiiitaiice  \yith  the  laud  to  testify  un- 
aerstandingly.    *  , 

FiTo  Acre  Limit.— 70.— The   law  exprcs.sly  limits  mill  site 
locations  made  from  and  after  its  passage  to  Jive  acres 

77.- The  Keijisters  and  Receivers  will  preserre  an  nnbroken 
eonsecatire  series  of  uumbcr.s  for  all  mineral  entries. 


CITIZENSHIP. 

Proof  of  filizensbip  of  Minine  Clainnnts.— 78.— The  proof 
neces-sary  to  establi-h  tlie  citizenship  of  applica' ts  for  mining 
patents  must  be  made  ill  the  following  manner :  In  case  of  an 
incor|)orated  company,  a  certified  co|>y  of  tlieir  charter  or  certif- 
icate of  incorporation  must  be  tiled.  In  case  of  an  as.sociation  of 
per.sons  unincorporated,  the  affidavit  of  iheir  duly  autliorized 
agent,  made  upon  his  own  kiio\vled-re,  or  upon  inlbrmalioii  and 
belief,  .setting  forth  the  residence  of  eacii  person  forming  such 
association,  must  be  submitted.  This  alhdavit  must  lie  accom- 
paniert  by  a  power  of  attorney  from  Ilie  (larties  fornii>  gsuch  as.so 
ciatioii,  authorizing  the  jjerson  who  makes  the  affidavit  of  citi- 
zenship to  act  for  them  in  the  matter  of  theii  application  for 
patent. 

79. — In  case  of  an  indivitlual  or  an  association  of  individuals 

who  do  not  api)ear  by  their  duly  authorized  agent,  you  will  re- 
quire the  affidavit  of  each  applicant,  showing  whether  he  is  a 
native  or  uaturaliiicd  citizen,  when  and  where  Doru,  and  his  resi- 
dence. 

Pil.— Incasean  applicant  lias  declared  his  intention  to  become 
a  citizen,  or  has  been  naturalized,  his  allidavit  must  show  the 
date,  i>laee  and  the  court  before  which  he  declared  his  intention 
or  froTii  which  his  certificate  of  citizenship  issued,  and  present 
residence. 


*  For  form  of  Affidavit  under  rule  75  see  application  fob. 

PATENT. 


224  LAND  OFFICE  RULES. 

Who  May  Tak.i  Amdayit.-Sl.— The  affidavit  of  the  claim- 
ant as  to  citizenshi|)may  be  taken  before  the  register  or  receiver, 
or  any  other  officer  authorized  to  administer  oaths  *.  If  citi- 
zensh"ip  is  established  by  the  testimony  of  disinterested  persons, 
sueli,  testimony  may  be  taken  at  any  place  before  any  person 
autliorizcd  to  administer  oaths,  and  whose  official  character  is 
duly  verified, 

MINERAL  DEPUTIES— FEES  AND  CHARGES. 

Newspaper  Charges.— 82.— Section  233t  provides  for  the  ap- 
pointment of  surveyors  of  mineral  claims,  authorizes  the  Com- 
missioner of  the  General  Land  Office  to  establish  the  rates  to  be 
cliarged  for  surveys  and  for  newspaper  publications,  prescribes 
the  fees  allowed  to  the  local  officers  for  receiving  and  acting  up- 
on applications  for  mining  patents  and  for  adverse  claims  there- 
to, &c. 

Under  this  authority  of  law  the  following  rates  have  been 
established  as  the  maxunum  charges  for  newspaper  publications 
in  mining  cases  : 

a  Where  a  daily  newspaper  is  designated  the  charge  shall 
not  exceed  seven  d()Ilars  for  each  ten  lines  of  space  occupied, 
and  where  a  weekly  Tiewspaper  is  designated  as  the  medium  of 
publication,  five  dolhirs  for  tlie  same  space  will  be  allowed. 
Bucli  charge  shall  be  accepted  as  full  payment  for  publication  in 
each  issue  of  the  newspaper  for  the  entire  period  required  by 
law. 

It  is  expected  that  these  notices  shall  not  be  so  abbreviated 
as  to  curtail  the  description  essential  to  a  perfect  notice,  and  the 
said  rates  established  upon  the  understanding  that  they  are  to  be 
in  the  usual  body-type  used  for  advertisements. 

b  For  the  publication  of  citations  in  contests  or  hearings  in- 
volving the  character  of  lands,  the  charges  shall  not  exceed  eight 
dollars  for  five  publications  in  weekly  newspapers,  or  ten  dollars 
for  publications  in  daily  newspapers  for  thirty  days. 

Deputy  Surreyors.— 83  — The  surveyors  general  of  the  sev- 
eral districts  will,  in  pursuance  of  said  law,  appoint  in  each  land 
district  as  many  cnmiififent  deputies  for  the  survey  of  mining 
claims  as  may  .seek  such  appointment ;  it  being  distinctly  under- 
stood that  all  expenses  of  these  notices  and  .surveys  are  to  be 
borne  by  the  mining  claimants  and  not  by  the  United  States : 
the  system  of  making  deposits  inv  mineral  surveys,  as  required 
by  previous  instructions,  being  hereby  revoked  as  regards  field 
%vork:  the  claimant  having  the  option  of  employing  any  deputy 
surveyor  within  such  district  to  do  his  work  in  the  field. 

*  See  note  ante  p.  223. 


LAND  OFFICE  RULES.  225 

Payment  of  Surveyor  (Jeneral.— 81.— With  reRard  to  the 
plutliti;/  of  the  cliiiin  ana  otlitr  dfflcc-uork  in  the  Surveyor  Gen 
cral's  oftirc,  that  officer  will  make  iin  e.'itimate  of  the  co^t  there- 
of, which  amount  the  claimant  will  deposit  with  any 
as.sistant  United  .'States  Treasurer,  or  designated  depo.s- 
itory,  in  lavor  of  the  United  States  Treasurer,  to  be  passed 
to  ttic  credit  of  the  fund  created  by  "  individual  depositors  for 
surveys  of  the  public  lands."  and  file  with  the  Surveyor  General 
duplicate  certihcates  of  such  deposit  in  the  usual  manner. 

One  Deputy  to  a  District.— 8-').— The  sur^•eyors  general  will 
endeavor  to  appoint  de])uty  mineral  surveyors  so  that  one  or  more 
may  be  located  in  each  mining  di.strict  for  the  greater  conven- 
encc  of  miners. 
i 

Oath.  Duties  of  Deputies.— 8G.—Tlie  usual  oaths  will  be 
required  of  these  deputies  and  their  assistants  as  to  the  correct- 
ness of  each  survey  executed  by  them. 

The  duty  of  the  deputy  mineral  surveyor  ceases  when  he  has 
executed  the  survey  and  returned  the  tield-notes  and  preliminary 
plat  thereof  with  his  report  to  the  surveyor-general.  He  will  not 
be  allowed  to  prepare  for  the  mining-claimant  the  papers  in  sup- 
port of  an  application  for  patent,  or  otherwise  jierform  the  duties 
of  an  attorney  before  the  land-office  in  connection  with  a  mining 
claim. 

The  surveyors-general  and  local  land-officers  are  expected 
to  report  any  infringement  of  this  regulation  to  this  office. 

Statement  of  rharjjes.- 87. — The  law  requires  that  each  ap- 
plicant shall  file  with  the  register  and  receiver  a  sworn  statement 
of  all  charges  and  fees  paid  by  him  for  publication  of  notice  and 
for  survey  ;  together  with  all  fees  and  money  paid  the  register 
and  receiver,  whicli  sworn  statement  is  required  to  be  transmitted 
to  this  office,  for  the  information  of  the  Commissioner. 

Exorbitant  Charpes.— 88. — Should  it  appear  that  excessive 
or  exorbitant  charges  have  been  made  by  any  surveyor  or  any 
jiublisher,  prompt  action  will  be  taken  with  the  view  of  correct- 
ing the  abuse. 

89.— The  fees  payable  to  the  register  and  receiver  for  filing 
and  acting  upon  applications  for  mineral  land  jiatents  are  five 
dollars  to  each  officer,  to  be  paid  by  the  applicant  for  patent  at 
the  time  of  filing,  and  the  like  sum  of  five  dollars  is  payable  to 
each  officer  by  an  adverse  claimant  at  the  time  of  filing  his  ad- 
verse claim. 

Leg:al  Tender.— 90.— All  fees  or  charges  under  this  law  may 
be  paid  in  United  States  currency. 

8 


226  LAND  OFFICE  RULES. 


Monthly  Report  to  General  Land  Office.— 91.— The  register 
and  receiver  will,  at  the  close  of  each  month,  forward  to  this 
office  an  abstract  of  mining  applications  filed,  and  a  register  of 
receipts,  accompanied  with  an  abstract  of  mineral  lands  .sold, 
and  an  abstract  of  adverse  claims  filed. 

Accounts  of  Land  Officer.  — 92.— The  fees  and  purchase 
money  received  by  registers  and  receivers  must  be  placed  to  the 
credit  of  the  United  States  in  the  receiver's  monthly  and  quar- 
terly account,  chaiging  up  in  the  disbursing  account  the  sums  to 
which  the  register  and  receiver  may  be  respectively  entitled  as 
fees  and  commissions,  with  limitations  in  regard  to  the  legal 
maximum. 

HEARIKGS  TO  ESTABLISH  THE  CHARACTER  OF  LANDS. 

Hearine:  Before  Nearest  Officer.— 93.— In  every  case  where 
it  becomes  necessary  under  the  law  and  existing  instructions  of 
this  office  that  a  hearing  be  held  and  testimony  taken  for  the 
purpose  of  ascertaining  the  mineral  or  agricultural  character  of 
land,  the  local  officers  are  directed  to  cause  the  evidence  to  be 
taken  before  a  duly  qualified  officer  whose  oflice  is  located  near- 
est the  land  in  dispute,  the  distance  to  be  computed  by  ordinary 
routes  of  travel. 

Whenever  the  local  office  comes  within  this  rule,  the  hear- 
ing will  be  held  before  the  register  and  receiver. 

It  is  intended  to  cause  these  hearings  to  be  held,  as  far  as 
practicable,  in  such  manner  as  to  aftbrd  the  least  inconvenience 
to  persons  interested.  Should  it  appear,  therefore,  by  written 
stipulation  of  all  the  parties  that  this  purpose  will  best  be  sub- 
served by  the  designation  of  any  particular  officer  authorized  to 
administer  oaths  within  the  land  district  in  which  the  land  in 
controversy  is  situated,  the  instructions  herein  may  be  departed 
from  in  accordance  with  such  stipulation.  Such  deviation  may 
also  be  allowed  where  the  officer  who  would,  otherwise,  be  des- 
ignated is  an  interested  party,  or  where,  for  other  good  reason, 
his  selection  would  be  improper. 

When  the  evidence  is  taken  before  an  ofHcer  other  than  the 
register  and  receiver,  the  record  should  be  sealed  up,  the  title  of 
the  case  indorsed  on  the  envelope,  and  the  whole  returned  by 
mail  or  express  to  the  register  and  receiver. 

On  the  27th  April,  1880,  in  accordance  with  the  directions  of 
the  Secretary  of  the  Interior  this  office  revoked  the  withdrawals 
theretofore  made,  upon  general  information,  that  vast  tracts  of 
public  laud  were  mineral  in  character,  and  instructed  the  local 
officers,  in  the  absence  of  a  specific  allegation  of  the  mineral 
character  of  land  to  allow  applications  for  agricultural  entry 
thereof,  upon  due  proof. 


LAND  OFFICE  RULES.  227 


Hereafter  the  only  tracts  of  public  land  that  will  be  with- 
held from  entry  as  aprriciiUural  land  on  account  of  its  mineral 
character  will  be  such  as  are  returned  by  the  surveyor  general 
as  mineral ;  and  even  the  presumption  which  is  supported  by 
such  return  may  be  overcome  by  testimony  taken  at  a  regular 
hearing. 

91.— Hearings  to  dotprminp  tlio  character  of  land  as  practic- 
ally di8tiii(;uiNhed,  are  of  two  kinds: 

1st.  Where  lands  which  are  sought  to  be  entered  and  pat- 
ented as  agricultural  are  alleged  by  affidavit  to  be  mineral,  or 
when  sougnt  as  mineral  their  non-mineral  character  is  alleged. 

The  proceedings  relative  to  this  class  are  in  the  nature  of  a 
contest  between  two  or  more  known  parties,  and  the  testimony 
may  be  taken  on  personal  notice  of  at  least  ten  days,  duly  served 
on  all  parties,  or,  if  they  cannot  be  found,  then  by  publication, 
for  thirty  days  in  a  newspaper  of  general  circulation,  to  be  desig- 
nated by  the  register  of  the  land  othce  as  published  nearest  to 
the  land  in  controversy.  If  publication  is  made  in  a  weekly 
newspaper,  the  notice  must  be  inserted  in  five  consecutive 
weekly  issues  thereof. 

2d.  \\'hen  .lands  are  returned  as  mineral  by  the  Surveyor 
General. 

When  such  lands  arc  sought  to  be  entered  as  agricultural, 
notice  must  be  given  by  publication  for  thirty  days,  as  afore- 
said. 

Notice — How  OiTen  and  How  Proved.— 95.— All  notices  must 
describe  the  land,  give  the  name  and  address  of  the  claimant, 
the  character  of  his  claim,  and  the  time,  place,  and  purpose  of 
the  hearing. 

Proof  of  service  of  notice,  when  personal,  must  consist  of 
cither  acknowledgment  of  service  indorsed  on  the  citation, 
(which  is  always  desirable.)  or  the  affidavit  of  the  party  serving 
the  same,  giving  date,  place,  and  manner  of  service,  indorsed  as 
aforesaid. 

Proof  of  publication  must  be  the  affidavit  of  the  publisher  of 
the  newspaper,  stating  the  period  of  publication,  giving  dates, 
stating  whether  in  a  daily  or  weekly  issue,  and  a  copy  of  the  no- 
tice so  pubUshed  must  be  attached  to,  and  form  a  part  of  the 
affidavit. 

Proof  of  posting  on  the  claim  must  be  made  by  the  affidavits 
of  two  or  more  persons  who  state  when  and  where  the  notice 
was  posted;  that  it  remained  so  posted  during  the  prescribed 
period,  giving  dates,  and  a  copy  of  the  notice  so  posted  must  be 
attached  to,  and  made  a  part  of,  the  affidavits. 


228  LAND  OFFICE  RULES. 


Proof  of  notice  is  indispensable  to  the  regularity  of  proceed- 
ings, and  must  accompany  the  record  in  every  case. 

The  expense  of  notice  must  in  every  case  be  paid  by  the 
parties  thereto. 

9f>.— At  the  hearin&r  there  must  be  filed  the  affidavit  of  the 
publisher  of  the  paper  that  the  said  notice  was  published  for  the 
required  time,  stating  when  and  for  how  long  such  publication 
was  made,  a  printed  copy  thereof  to  be  attached  and  made  a 
part  of  the  affidavit. 

Examination  of  Witnesses.— 97.— At  the  hearing  the  claim- 
ants and  witnesses  will  be  thoroughly  examined  with  regard  to 
the  character  of  the  land  :  whether  the  same  has  been  thorough- 
ly 7jrospected  ;  whether  or  not  there  exists  within  the  tractor 
tracts  claimed  any  lode  or  vein  of  quartz  or  other  rock  in  place, 
bearing  gold,  silver,  cinnabar,  lead,  tin  or  copper,  or  other  valu- 
able deposit  which  has  ever  been  claimed,  located,  recorded,  or 
worked  ;  whether  such  work  is  entirely,  abandoned,  or  whether 
occasionally  resuiaed;  if  such  lode  does  exist,  by  whom  claimed 
under  what  designation,  and  in  which  subdivision  of  the  land  it 
lies  ;  whether  any  placer  mine  or  mines  exist  upon  the  land  ;  if 
so,  what  is  the  character  thereof— whether  of  the  shallow  surface 
description,  or  of  the  deep  cement,  blue  lead,  or  gravel  deposits  ; 
to  what  extent  mining  is  carried  on  when  water  can  be  obtained, 
and  what  the  facilities  are  for  obtaining  water  for  mining  pur- 
poses ;  upon  what  particular  ten-acre  tubdivisions  mining  has 
been  done,  and  at  what  time  the  land  was  abandoned  for  mining 
purposes,  if  abandoned  at  all. 

98.— The  testimony  should  also  show  the  agricultural  capac- 
ities of  the  land,  what  kind  of  crops  are  raised  thereon,  and  the 
value  thereof ;  the  number  of  acres  actually  cultivated  for  crops 
of  cereals  or  vegetables,  and  within  which  particular  ten-acre 
sub-division  such  crops  are  rai.sed;  also  which  of  these  sub-divis- 
ions embrace  his  improvements,  giving  in  detail  the  extent  and 
value  of  his  improvements,  such  as  house,  barn,  vineyard,  orch- 
ard, fencing,  etc. 

Contest  Between  Sfttlers  and  Miners —99.— It  is  thought  that 
bona  fide  .settlers  upon  lands  really  agricultural  will  be  able  to 
show,  by  a  clear,  logical,  and  succinct  chain  of  evidence,  that 
their  claims  are  founded  upon  law  and  justice  ;  while  parties 
who  have  made  little  or  no  permanent  agricultural  improve- 
ments, and  who  only  seek  title  for  speculative  purposes,  on 
account  of  the  mineral  deposits  known  to  themselves  to  be 
contained  in  the  land,  will  be  defeated  in  their  intentions. 

100. — The  testimony  should  be  as  full  and  complete  as  possi- 
ble; and,  in  addition  to  the  leading  points  indicated  above, 
everything  of  importance  bearing  upon  the  question  of  the 
character  of  the  land  should  be  elicited  at  the  hearing. 


LAND  OFFICE  RULES.  229 


101. — Wherp  the  testimony  Is  taken  before  an  oflUcer  who  does 
uot  nse  a  seal,  other  than  the  register  ami  receiver,  the  official 
character  of  such  ofllcer  must  be  attested  by  a  clerk  of  a  court  of 
record,  and  the  testimony  transmitted  to  ilic  rcRister  and  re- 
ceiver, who  will  thereupon  examine  and  forward  the  same  to  this 
offlce,  with  their  joint  opinion  as  to  the  character  of  the  land  as 
shown  by  the  testimony. 

Division  Contested.  Ground  Survey.— 102.— When  the  case 
comes  before  this  office,  such  an  award  of  the  land  will  be  made 
as  the  law  and  the  facts  may  justify;  and  in  cases  where  a  survey 
is  necessary  to  set  apart  the  mineral  from  the  agricultural  land 
in  any  forty-acre  tract,  the  neee.ssary  instructions  will  be  issued 
to  enable  the  agricultural  claimant,  at  Ma  own  expense,  to  have 
the  work  done,  at  his  option,  either  by  United  States  deputy, 
county,  or  other  local  surveyor ;  the  survey  in  such  cjvse  may  be 
executed  in  such  manner  as  will  segregate  the  portion  of  land 
actually  containing  thv  mine,  and  used  as  surface  ground  for  the 
convenient  working  thereof,  from  the  remainder  of  the  tract, 
which  remainder  will  be  patented  to  the  agriculturist  to  whom 
the  same  may  have  been  awarded,  subject,  however,  to  the  con- 
dition that  the  land  may  be  entered  upon  by  the  proprietor  of 
any  vein  orlode  for  which  a  patent  has  been  issued  by  the  United 
States  for  the  purpose  of  extracting  and  removing  the  ore  from 
the  same,  where  found  to  penetrate  or  intersect  the  land  so  pat- 
ented as  agricultural,  as  stiitulated  by  the  mining  act. 

Proof  of  Snrvey.  .\nidiiTlts,  Before  Whom  Taken.— 103.— 
Such  survey  when  executed  must  be  properly  sworn  to  by  the 
Burvcyor,  either  before  a  notary  public,  ofllcer  of  a  court  of  rec- 
ord, or  before  the  register  or  receiver,  the  deponent's  character 
and  credibility  to  be  properly  certified  to  by  the  officer  adminis- 
tering the  oath. 

Plattlne  Same.— 104.— Upon  the  tiling  of  the  plat  and  field 
notes  of  such  survej ,  duly  sworn  to  as  aforesaid,  you  will  trans- 
mit the  same  to  the  surveyor  general  for  his  verification  and 
approval ;  who,  if  he  finds  the  work  correctly  performed,  will 
properly  mark  out  the  same  upon  the  original  township  plat  in 
his  office,  and  furni.sh  authenticated  copies  of  such  plat  and 
description  both  to  the  proper  local  land  offlce  and  to  this  office, 
to  be  affixed  to  the  duplicate  and  triplicate  township  plats  re- 
spectively. 

Segrejfation  of  Agricniturnl  Claim.— 105.— In  cases  where  a 
portion  of  a  forty-acre  tract  is  awarded  to  an  agricultural  claim- 
ant and  he  causes  the  segregation  thereof  from  the  mineral  por- 
tion, as  aforesaid,  sucli  agricultural  portion  will  not  be  given  a 
numerical  designation  as  in  the  case  of  surveyed  mineral  claims. 

but  will  sinii>ly  be  described  as  the  "  Fractional quarter  of 

the quarter  of  section  ,  in  township ,  of  range 

,  meridan,  containing acres,  the  same  being  e.xclusivc 

of  the  land  adjudged  to  be  mineral  in  said  forty-acre  tract." 


230  LAND  OFFICE  RULES. 

106.— The  surveyor  must  correctly  compute  the  area  of  such 
agriculiural  portion,  which  coinputatioQ  will  be  verified  by  the 
surveyor  general. 

Order  for  Entry.— 107. — After  the  authenticated  plat  and 
field  notes  of  the  survey  have  been  received  from  the  surveyor 
general,  this  otlicc  will  issue  the  necessary  order  for  the  entry  of 
the  land,  and  in  issuing  the  receiver's  receipt  and  register's  pat- 
ent ceriificatc  you  will  invariably  be  governed  by  the  description 
of  the  land  given  in  the  order  from  this  office. 

Costs.- 108.— The  fees  for  taking  testimony  and  reducing  the 
same  to  writing  in  these  cases  will  have  to  be  defrayed  by  the 
parties  in  interest.  Where  such  testimony  is  taken  before  any 
other  officer  than  the  register  and  receiver,  the  register  and 
receiver  will  be  entitled  to  no  fees. 

Land  Partly  Mineral.- 109.— If,  upon  a  review  of  the  testi- 
mony at  this  office,  a  ten-acre  tract  should  be  found  to  be  prop- 
erly mineral  in  character,  that  fact  will  be  no  bar  to  the  execu- 
tion of  the  settler's  legal  right  to  the  remaining  rian-mineTal 
portion  of  his  claim,  if  contiguous. 

Protection  Against  Mineral  Entry  of  Non-Mineral  Land. — 
110.— No  fear  need  be  entertained  that  miners  will  be  permitted 
to  make  entries  of  tracts  ostensibly  as  mining  claims,  which  are 
not  mineral,  simply  for  the  purpose  of  obtaining  possession  and 
defrauding  settlers  out  of  their  valuable  agricultural  improve- 
ments; it  being  almost  an  impossibility  for  such  a  fraud  to  be 
consummated  under  the  laws  and  regulations  applicable  to 
obtaining  patents  for  mining  claims. 

Proceedings  if  Land  Awarded  to  be  Mineral. — 111.— The  fact 
that  a  certain  tract  of  land  is  decided  upon  testimony  to  be 
mineral  in  character  is  by  no  means  equivalent  to  an  award  of 
the  land  to  a  miner.  A  miner  is  compelled  by  law  to  give  sixty 
days  publication  of  notice,  and  posting  of  diagrams  and  notices, 
as  a  preliminary  step;  and  then,  before  he  can  enter  the  land, 
he  must  show  that  the  land  yields  mineral;  that  lie  is  entitled  to 
the  possessory  right  thereto  in  virtue  of  compliance  with  local 
customs  or  rules  of  miners,  or  by  virtue  of  the  statute  of  limita- 
tions; that  lie  or  his  grantors  have  expended,  in  actual  labor  and 
improvements,  an  amount  of  not  less  than  five  hundred  dollars 
thereon,  and  that  the  claim  is  one  in  regard  to  which  there  is  no 
controversy  or  opposing  claim.  After  all  the.se  proofs  are  met,  he 
la  entitled  to  have  a  survey  made  at  his  own  cost  where  a  survey 
is  required,  after  which  he  can  enter  and  pay  for  the  land 
embraced  by  his  claim. 

112. — Blank  forms  for  proofs  in  mineral  cases  are  not  fur- 
nished by  the  General  Land  Office. 

Approved,  N.  C.  McFARLAND,  Commissioner, 

S.  J.  KIRKWOOD,  Secretary. 

The  rules  published  in  1881  have  been  amended  from 
time  to  time  but  never  since  formally  revised. 


SURTEYOR  GENERAL'S  RULES. 


The  following  constitute  the  circular  of  the  office  now 
(March  1888)  in  force_  originally  published  in  1886.  Their 
directions  as  far  as  applicable  should  be  followed  when  sur- 
veys are  made  by  professional  surveyors  in  other  cases  as 
well  as  upon  oflicial  surveys. 

If  the  location  survey  has  been  carefully  and  correctly 
made  the  official  survey,  though  it  must  still  be  made  in 
the  field,  requires  little  additional  labor. 

INSTRUCTIONS    TO    U.    S.    DEPUTY    MINERAL   SURVEYORS,    FOR     THE 
DISTRICT  OF  COLORADO— GENERAL  RULES. 

1  —All  oflicial  coiuinunicfttions  must  be  addressed  to  the 
SnrTeyor  (Jeneral.  You  will  always  refer  to  the  date  and  sub- 
ject matter  of  the  letter  to  which  you  reply,  and  wlieu  a  mineral 
claim  in  the  subject  of  correspondence,  you  will  give  the  name, 
ownership  and  survey  number. 

SurTcyor's  Record.— 2. — You  should  keep  a  complete  record 
of  each  survey  made  by  you,  and  tlie  facts  coming  to  your  knowl- 
edge at  the  time,  as  well  as  copies  of  all  your  field  notes,  reports 
and  oflicial  correspondence,  in  order  that  such  evidence  may  be 
readily  produced  when  called  for  at  any  future  time. 

Alterations  and  Erasures.— 3.— Field  notes  and  other  reports 
must  be  written  in  a  clear  and  legible  hand,  and  upon  the  proper 
blanks  furnished  by  this  otflce.  No  cut  sheets,  interliixeations  or 
erasures  will  be  allowed  ;  and  no  abbreviations  or  symbols  must 
be  used,  except  such  as  are  indicated  in  the  specimen  field  notes. 

Order  Necessary. — 4,— No  return  by  you  will  be  recognized  as 
official  unless  made  in  pursuance  of  a  special  order  from  this 
oflace. 

Claimant  only.  Liable  for  Cliar(?es.-5.— The  claimant  is 
required  in  all  cases,  to  make  satisfactory  arrangements  with  you 
for  the  payment  for  your  services  and  those  of  your  assistants  in 
making  the  survey,  "as  the  United  States  will  not  beheld  respons- 
ible for  the  payment  of  the  same.  You  will  call  the  attention  of 
applicants  for  mineral  survey  orders  to  the  requirements  of  the 
circular  of  this  date  in  the  ap#cndix. 


232  SURVEYOR  GENERAL'S  RULES. 

Removal.— 6.— You  will  promptly  notify  this  office  of  any 
change  in  your  postoffice  address.  Upon  permanent  removal 
from  the  State,  you  are  expected  to  resign  your  appointment. 

NOT  TO  ACT  AS  ATTORNEY. 

7. — You  are  preclude*  from  acting,  either  directly  or  indi- 
rectly, as  iittoriicy  in  mineral  claims.  Your  duty  in  any  particu- 
lar case  ceases  wlien  yon  have  executed  the  survey  and  returned 
the  field  notes  and  preliminary  plat,  with  your  report  to  the 
Surveyor  General.  You  will  not  be  allowed  to  prepare  for  the 
mining  claimant  the  papers  in  support  of  his  application  for 
patent,  or  otherwise  perform  the  duties  of  an  attorney  before  the 
land  office  in  connection  with  a  mining  claim.  You  are  not 
permitted  to  combine  tlie  duties  of  surveyor  and  notary  public  in 
the  .«ame  case  by  administering  oaths  to  the  parties  in  interest. 
In  short,  you  mu.st  have  absolutely  nothing  to  do  with  the  case 
except  in  your  official  capacity  as  surveyor.  You  will  make  no 
survey  of  a  mineral  claim  in  which  you  hold  an  interest. 

THE   FIELD  WORK. 

Snryey  Must  be  Actual.— 8.— The  survey  made  and  reported 
must,  in  every  case,  be  an  actual  survey  on  the  ground  in  full 
detail,  made  by  yon  in  person  after  the  receipt  of  the  order,  and 
without  reference  to  any  knowledge  you  may  have  previously 
acquired  by  reason  of  having  made  the  location  survey  or  other- 
wise, and  must  show  the  actual  facts  existing  at  the  time.  If  the 
season  of  the  year,  or  any  otlier  cause,  renders  such  personal 
examination  impossible,  you  will  postpone  the  survey,  and 
under  no  circumstances  rely  upon  the  statements  or  surveys  of 
other  parties,  or  upon  a  foriner  examination  by  yourself. 

The  term  survey  in  these  instructions  applies  not  only  to  the 
usual  field  work,  but  also  to  the  examinations  required  for  the 
preparation  of  your  affidavits  of  five  hundred  dollars  expendi. 
ture,  descriptive  reports  on  placer  claims  and  all  other  reports  _ 

SURVEY  AND  LOCATION. 

Survey  Must  Conform  to  Location.— 9.— The  survey  must  be 
made  in  strict  coiiforniity  with,  or  be  embraced  within,  the  lines 
of  the  record  of  location  upon  which  the  order  is  based.  If  the 
survey  and  location  arc  identical,  that  fact  must  be  clearly  and 
distinctly  stated  in  your  field  notes  If  not  identical,  a  bearing 
and  distance  must  be  given  from  each  established  corner  of  the 
.survey  to  the  corresponding  corner  of  the  location.  The  lines  of 
the  location,  as  found  upon  the  ground,  must  be  laid  down  upon 
the  preliminary  plat  in  such  manner  as  to  contrast  and  show 
iheir  relation  to  the  lines  of  the  survey. 

Old  IJocords.— 10.— If  the  record  of  location  has  been  made 
prior  to  the  passage  of  the  mining  act  of  May  10,  1872,  and  is  not 
sufficiently  definite  and  certain  to  enable  you  to  make  a  correct 
survey  therefrom,  you  arc  rcquirc^il,  after  reasonable  notice  in 


PURVEYOR,  GENERAL'S  RULES.      233 


writing,  to  bo  served  personally  or  through  the  Unitorl  States 
mail  oil  the  applicant  for  survey  and  adjoining  ulainiants,  whose 
residence  or  postof'fice  address  you  may  know,  or  can  a«''.erlaiii 
by  the  exercise  of  reasonable  diligence,  to  take  testimony  of 
neighljoriiig  claimants  and  otlier  oersons  who  are  familiar  with 
the  boundaries  tliereof  as  originally  located  and  asserted  by  the 
locators  of  the  claim,  and  after  having  ascertained  l)y  such  testi- 
mony the  boundaries  as  originally  established,  you  will  make  a 
survey  in  accordance  therewith,  and  transmit  full  and  correct 
returns  of  the  survey,  accompanied  by  the  copy  of  the  record  of 
location,  the  testimony,  and  a  copy  of  the  notice  served  on  the 
claimant  and  adjoining  proprietors,  certifying  tliereon  when,  in 
what  manner,  and  on  whom  service  was  made. 

Disputed  llouiidaries.— II.— If  the  location  has  been  made 
subsequent  to  the  jiassage  of  the  mining  act  of  May  10, 1872,  and 
the  law  has  been  coiuulied  witli  in  the  manner  of  marking  the 
location  on  the  ground  and  recording  the  same,  and  any  question 
should  arise  in  the  execution  of  the  survey  as  to  the  identity  of 
monuments,  marks  or  boundaries  whicli  caiuiot  be  determined 
by  a  reference  to  the  record,  yon  are  required  to  take  testimony 
in  the  manner  hereinbefoi-c  prescribed  for  surv^eys  of  claims 
located  i>rior  to  May  10,  l.s7'2,  and  having  thus  ascertained  the 
true  and  correct  boiuidaries  originally  esiablished,  marked  and 
recorded,  you  will  make  the  survey  accordingly. 

Corners  Not  to  Be  Chanupd.— 12.— In  accordance  with  the 
principle  that  courses  and  distances  inust  give  way  when  in 
conflict  with  (i.xed  objects  and  monuments,  vou  will  not,  under 
any  circumstances,  change  the  corners  of  the  location  for  the 
purpose  of  making  them  conform  to  the  description  in  the 
record.  If  the  ditlerence  from  the  location  hv  slight,  it  may  be 
explained  in  the  field  notes,  but  if  there  should  be  a  wide  dis- 
crepancy, you  will  report  the  facts  to  this  office  and  await  further 
iusiructlons. 

INSTRUMENT. 

13  —All  mineral  .sur^'oys  must  be  made  with  a  sor.An  tran- 
sit, or  other  instnunent  operating  independently  of  tlie  magnetic 
needle,  and  all  courses  must  be"  referred  to  the  true  meridian 
It  is  deemed  best  that  a  solar  transit  should  be  used  under  all 
circumstances.  The  variation  sliould  be  noted  at  each  corner 
of  the  survey. 

CONNKOTIONS. 

I'l.— Coiineet  corner  No  1  of  your  survey  by  course  and  dis- 
tance with  some  corner  of  tlie  public  survey  or  a  United  States 
locati<jn  monument,  if  the  chiiiu  lies  within  two  miles  of  such 
corner  or  monument.  If  both  arc  within  the  required  distance, 
you  will  connect  with  the  nearest  corner  of  the  public  survey. 


234  SURVEYOR  GENERAL'S  RULES. 


LOCATION  MONUMENTS. 

Mineral  Monuments.— 15.— In  case  your  survey  is  situatf  d  in 
a  district  wliere  there  are  no  corners  of  tlie  public  survey  and  no 
monuments  within  the  prescribed  limits,  you  will  proceed  to 
establish  a  mineral  monument,  in  the  location  of  which  you  will 
exercise  the  greatest  care  to  insure  permanency  as  to  site  and 
construction. 

Sboald  Be  Permanent.— lli.— The  site,  when  practicable, 
should  be  some  prominent  point  visible  for  a  long  distance  from 
every  direction,  and  should  be  so  chosen  that  the  permanency  of 
the  monument  will  not  be  endangered  by  snow,  rock  or  land 
slides,  or  other  natural  causes. 

How  Marked.— 17. — The  location  monument  should  consist 
of  a  post  eight  feet  long  and  six  inches  square  set  three  feet  in 
the  ground,  and  protected  by  a  well  built  conical  mound  of  stone 
three  feet  high  and  six  feet  base.  The  letters  U.  8.  L.  M.  followed 
by  a  number,  identical  with  the  number  of  the  survey  for  which 
the  monument  is  established  must  be  scribed  on  the  post  and 
also  chiseled  on  a  large  stone  in  the  mound,  or  on  the  rock  in 
place  that  may  form  the  base  of  the  monument.  There  is  no 
objection  to  the  establishment  of  a  location  monument  of  larger 
size,  or  of  other  material  of  equally  durable  character. 

Ties  of  Mineral  Monument. — 18.— From  the  monument,  con- 
nections by  course  and  distance  must  be  taken  to  two  or  three 
bearing  trees  or  rocks,  and  to  any  well  known  natural  and  per- 
manent objects  in  the  vicinity,  such  as  the  confluence  of  streams, 
prominent  rocks,  buildings,  shafts  or  mouths  of  adits.  Bearings 
should  also  be  taken  to  prominent  mountain  peaks,  and  the  ap- 
proximate distance  and  direction  ascertained  from  the  nearest 
town  or  mining  camp.  A  detailed  description  of  the  location 
monument  must  be  included  in  the  field  notes  of  the  survey  for 
which  it  is  established. 

CORNERS. 

19.— Corners  may  consist  of 

First— X  stone  at  least  twenty-four  inches  long  by  six  inches 
square  set  eighteen  inches  in  the  ground. 

Second— K  post  at  least  four  and  a  half  feet  long  by  four 
inches  square  .set  twelve  inches  in  the  ground  and  surrounded 
by  a  mound  of  stone  cr  earth  two  and  a  half  feet  high  and  five 
feet  base. 

Third— k  rock  in  place. 

Marking  Corners.— 2(1. — All  corners  must  be  establLshed  in 
a  permanent  and  workmanlike  manner,  and  the  corner  and 
survey  number  must  be  neatly  chiseled  or  scribed  on  the  sides 


SURVEYOR  GENERAL'S  RULES.      235 

facing  the  claim.  When  a  rock  in  place  is  used  its  dimension.s 
above  ground  must  be  stated,  and  a  cross  chi.sclod  at  the  exact 
corner  point. 

InarcpusIblP  ('orn('rs.--21.— In  case  the  point  for  the  corner 
be  inaccessible  or  unsuitable,  you  will  cstal)lisli  a  witness  corner, 
which  must  bo  marked  with  the  letters  \V.  C.  in  addition  to  the 
corner  and  survev  nunil)cr.  I'he  witness  corner  should  be 
located  upon  a  line  of  the  survey  and  as  near  as  praciicable  to 
the  true  corner,  with  which  it  must  be  connected  by  course  and 
distance.  The  reason  for  the  establishment  of  a  witness  corner 
must  always  be  stated  in  the  field  notes. 

Tylnjr  forners.— 22.— The  identity  of  all  corners  should  be 
perpetuated  by  taking  courses  and  distances  to  bearing  trees, 
rocks,  and  other  objects,  as  prescribed  in  the  establishment  of 
location  monuments.  If  an  ollicial  survey  has  been  made  within 
a  reasonable  distance  in  the  vicinity,  you  will  run  a  connecting 
line  to  some  corner  ot  the  same,  and  connect  in  like  manner  with 
all  conflicting  surveys  and  claims. 

TOPOGRAPHY. 

23.— Note  carefully  all  topographical  features  of  the  claim, 
taking  distances  on  your  lines  to  intersections  with  all  streams, 
gulches,  diiches,  ravines,  mountain  ridges,  roads,  trails,  etc., 
with  their  widths,  courses  and  other  data  that  may  be  required 
to  map  them  Correctly.  If  tlie  claim  lies  within  a  townsite, 
locate  all  municipal  improvements,  such  as  blocks,  streets  and 
buildings. 

24.— You  are  required  also  to  locate  all  mining  and  other 
Improvements  upon  the  claim  by  courses  and  distances  irom 
cornersof  the  survey,  or  by  rectangular  offsets  from  the  center 
line,  specifying  the  dimensions  and  character  of  each  in  full 
detail. 

CONFLICTS. 

2.'\ — If  in  running  the  exterior  lioundaries  of  a  claim,  you 
find  that  two  surveys  conflict,  you  will  determine  the  cour.ses 
and  distances  fromthe  established  corners  at  which  the  exterior 
boundaries  of  the  respective  surveys  intersect  each  other,  and 
run  all  lines  necessary  for  the  determination  of  ihe  areas  in  con- 
flict, both  with  surveyed  and  unsurveyed  claims,  You  are  not 
required,  however,  to  show  conflicts  with  unsurveyed  claims  un- 
less the  same  are  to  be  excluded. 

26.— When  a  placer  claim  includes  lodes,  or  when  .several 
lode  locations  are  included  as  one  claim  in  one  survey,  you  will 
preserve  a  consecutive  series  of  numbers  for  the  corners  of  the 
whole  survey  in  each  case.  In  the  former  case  you  will  first 
describe  the  placer  claim  in  your  field  notes." 


236      SURVEYOR  GENERAL'S  RULES. 


PLACER    CLAIMS    AND   MILL-SITE?. 

27. — The  exterior  lines  of  placer  claims  cannot  be  extended 
over  other  claims,  and  the  coiillicting  areas  excluded  as  with 
lode  claims,  it  tjoing  the  surface  ground  only,  -with  side  lines 
taken  perpendicularly  downward  for  which  ajiplication  is  made. 
The  survey  must  accurately  define  the  boundaries  of  the  claim. 
The  same  rule  will  apply  to  the  survey  of  mill-sites. 

Brokpn  ClHiinti.— 28  — If  by  reason  of  intervening  .surveys  or 
claims  a  placer  or  mill  site  survey  should  be  divided  into  sepa- 
rate tracts  you  will  also  preserve  a  consecutive  series  of  numbers 
for  the  corners  of  the  whole  survey,  and  distinguish  the  detached 
portions  as  Lot  No.  1,  Lot  No.  2,  etc.,  connecting  by  course  and 
distance  a  corner  of  each  lot  with  some  corner  of  the  one  previ- 
ously described. 

LODE  AND  MILL-SITE. 

29.  A  lode  and  mill-site  claim  in  one  survey  will  be  distin- 
guished by  the  letters  A  and  B  following  the  number  of  the 
survey.  The  corners  of  the  mill-site  will  be  numbered  inde- 
pendently of  those  of  the  lode.  Corner  No.  1  of  the  mill-site 
must  be  "connected  with  a  cornei-  of  the  lode  claim  as  well  as 
with  a  corner  of  the  public  survey  or  U.  S.  location  monument. 

FIELD  NOTES. 

Details  of.— 30.— In  order  that  the  results  of  your  survey 
may  be  reported  to  this  office  in  a  uniform  manner,  you  will 
prepare  your  field  notes  and  j)re]imiiiary  plat  in  strict  conformity 
with  the" specimen  field  notes  and  jjlat,  which  are  made  part  of 
these  instructions.  They  are  designed  to  furnish  you  with  all 
needed  information  concerning  the  manner  of  describing  the 
boundaries,  corners,  conneetionSj  intersections,  conflicts  and 
improvements,  and  .stating  the  variation,  area,  location  and 
other  data  connected  with  the  survey  of  mineral  claims,  and 
contain  forms  of  affidavits  for  the  deputy  surveyor  and  his 
assistants. 

In  your  first  reference  to  any  other  mineral  claim  you  will 
give  the  name,  ownership,  and  if  surveyed,  the  survey  number. 

Total  Ami.  Conflicts.— 31 . — The  total  area  of  a  lode  claim 
embraced  by  the  exterior  boundaries,  and  also  the  area  in  con- 
flict with  each  intersecting  survey  or  claim  should  be  so  stated, 
that  the  conflicts  with  any  one  or  allof  ihem  may  be  included  or 
excluded  from  your  survey.  This  will  enable  ihe  claimant  to 
state  in  his  application  for  patent  the  portions  to  be  excluded  in 
express  terms,  and  to  readily  determine  the  net  area  of  his  claim. 

.32.— You  will  state  parficiiLnrly  nhcfher  the  claim  is  upon 
snrTeyed  or  unsnfTeyed  public  hinds,  giving  in  the  former  case 
the  quarter  section,  township  and  range  in  which  it  is  located, 
and  in  the  latter  the  township  as  near  as  can  be  determined. 


SURVEYOR  GENERAL'S  RULES.  237 

33. — The  field  notes  must  contsin  <lic  postoffirr  nddrPSR  fif 
the  claimant  or  his  uuthorized  agent. 

EXPENDITURE  OF  FIVE  HUNDRED  DOLLARS 

34.— The  claimant  is  required  by  law,  either  at  the  time  of 
filing  his  application,  or  at  any  time  thereafter,  within  the  sixty 
f]ay.s  of  puhlication,  to  file  with  the  Reaister  the  certificate  of  the 
Surveyor  Griieral  that  five  hundred  dolla's  wfirth  of  labor  has 
been  expended  or  improvements  made  upon  \he  claim  by  himself 
or  grantors.  The  information  upon  which  to  base  this  certificate 
must  be  derived  from  the  deputy  who  makes  the  actual  sin  vey 
and  examination  upon  the  premises,  and  such  deputy  is  required 
to  .spccity  with  particularity  and  full  detail  the  character  and 
extent  of  such  in)i)rovcments.    See  also  Sec.  S. 

3.5 — When  a  siirTPy  embraces  several  locations  or  claims 
held  In  roninion,  ccinstituiing  one  entire  claim,  whether  Icde  or 
placer,  an  expenditure  of  five  hundred  dollars  upon  such  entire 
claim  embraced  in  the  survey  will  be  sufficient  and  need  not 
be  shown  upon  each  of  the  location.-,  included  therein. 

36. — In  case  of  a  lode  an<l  mill-site  claim  in  the  same  survey, 
an  expenditure  of  five  hundred  dollars  must  be  shown  upon  the 
lode  claim  only. 

37. — Only  nrtiial  expenditures  and  minius:  improvements, 
made  Ijy  the  claimant  or  his  grantors,  having  a  direct  relation 
to  the  development  of  the  claim,  can  be  included  in  your  esti- 
mate. 

Superficial  or  rndereround. — 38. — ^The  expenditures  re- 
quired may  be  made  from  tne  surface,  or  in  running  a  tunnel  for 
the  development  of  the  claim.  Improvements  of  any  other 
character,  such  as  buildings,  machinery  or  roadways,  must  be 
excluded  from  your  estimate  unless  you  show  clearly  that  they 
are  associated  with  actual  excavations,  such  as  cuts,  tunnels, 
shafts,  etc.,  and  are  essential  to  the  practical  development  of  the 
surveyed  claim. 

39. — You  will  five  in  detail  the  value  of  each  minint;  im- 
provement included  in  your  estimate  of  expenditure,  and  when 
11  tunnel  or  other  improvement  has  been  made  for  thT  develop- 
ment of  other  claims  in  connection  with  the  one  for  which  sur- 
vey is  made,  your  report  must  give  the  name,  ownership,  and 
survey  numljer.  if  any,  of  each  claim  to  which  a  proportion  or 
interest  is  credited,  and  the  value  of  the  pioportion  or  interest 
credited  to  each.  The  value  of  improvements  made  upon  other 
locations  or  by  a  former  locator  wlio  has  abandoned  his  claim 
cannot  be  included  in  your  estimate. 

Form.— 40.— In  making  out  your  certificate  of  the  value  of 
the  improvements,  you  will  follow  the  form  prescribed  in  the 
specimen  field  notes. 


238      SURVEYOR  GENERAL'S  RULES. 


Other  Improvements.— 41. — Following  your  certificate  you 
will  locate  anci  describe  all  other  improvements  made  by  the 
claimant  or  other  i)arties  within  the  boundaries  of  the  survey. 

Expenditures  Not  Complete.— 42.— If  the  value  of  the  labor 
and  improvements  upon  a  mineral  claim  is  less  than  five  hundred 
dollars  at  the  time  of  survey,  you  are  authorized  to  file  your  affi- 
davit of  five  hundred  dollars  expenditure  at  any  time  before  the 
expiration  of  the  sixty  days  ol  publication,  but  not  afterwards 
unless  by  special  instructions. 

DESCRIPTIVE  KEPORTS  ON  PLACER  CLAIMS. 

43.— By  General  Land  Office  circular,  approved  September 
23, 1882,  you  are  required  to  make  a  full  examination  of  all  placer 
claims  at  the  time  of  sur\-ey,  and  file  with  your  field  notes  a  de- 
scriptive report  in  which  you  will  describe— 

(a)  The  qtiality  and  composition  of  the  soil,  and  the  kind 
and  amount  of  timber,  and  other  vegetation. 

(6)  The  locus  and  size  of  streams,  and  such  other  matters 
as  may  appear  upon  tne  surface  of  the  claims. 

(r)  The  character  and  extent  of  all  surface  and  under- 
ground workings,  whether  i>laeer  or  lode,  for  mining  purposes 

* 
(d)    The  proximity  of  centers  of  trade  or  residence. 

(c)  The  proximity  of  well-known  systems  of  lode  deposits  or 
of  individual  lodes. 

(/)  The  use  or  adaptability  of  the  claim  for  placer  mining, 
and  whether  water  has  been  brought  upon  it  in  sufBeient  quan- 
tity to  mine  the  same,  or  whether  it  can  be  procured  for  that 
purpose. 

(g)  What  works  or  expenditures  have  been  made  by  the 
claimant  or  his  grantors  for  the  development  of  the  claim,  and 
their  situation  and  location  with  respect  to  the  same  as  applied 
-for. 

(h)  The  tnie  situation  of  all  mines,  salt  licks,  salt  springs, 
and  mill  seats,  which  come  to  your  knowledge;  or  report  that 
none  exist  on  the  claim,  as  the  facts  may  warrant. 

( i )  Said  report  must  be  made  under  oath ,  and  duly  corrob- 
orated by  one  or  more  disinterested  persons. 

Special  Order  For  — 44.— Descriptive  reports  upon  placer 
claims  taken  by  legal  sub-divisions  are  authorized  only  by  special 
order,  and  must  contain  a  description  of  the  claim  in  addition  to 
the  foregoing  requirements. 


SURVEYOR  GENERAL'S  RULES.  239 


PRELIMINARY  PLAT. 

45.— You  will  file  with  your  fieUl  notes  a  preliminary  plat  on 
drawing  paper  or  tracing  "muslin,  protractca  on  a  scale  of  two 
hundred  feet  to  an  inch,  on  which  you  will  note  accurately  all 
the  topographical  features  and  details  of  the  survey  in  con- 
formity with  the  specimen  plat  herewith.  Pencil  sketches  will 
not  be  accepted. 

REPORT. 

46.— You  will  also  submit  with  your  return  of  sun'cy  a  report 
upon  the  following  matters  incident  to  the  survey,  but  not  re- 
quired to  be  embraced  in  the  field  notes. 

Efttablishing  the  Meridian. — 17.— If  the  meridian  from  which 
your  courses  were  deflected  was  established  by  other  means  than 
by  the  solar  apparatus  attached  to  your  transit,  you  will  .state  in 
detail  your  observations  and  calculations  for  the  establishment  ot 
Buch  meridiim. 

Trlaiigulatidus.- 48.— If  any  of  the  lines  of  the  survey  were 
determined  by  triangulation  or  traverse,  you  will  give  in  full 
detail  the  fulculations  whereby  you  arrived  at  the  results  re- 
ported in  your  field  notes.  You  will  also  submit  your  calculations 
of  areas  of  placer  and  mill-site  claims  or  other  irregular  tracts. 

Errors  in  Prior  Surveys.— 40.— You  will  mention  in  your 
report  the  discovery  of  any  material  errors  in  prior  official  sur- 
veys, giving  the  extent  of  the  same. 

ERRORS. 

50.— Whenever  a  survey  has  been  reported  in  error,  the  dep- 
uty surveyor  who  made  it  "will  be  required  to  promptly  make 
a  thorough  examination,  ui)on  the  i)remises,  and  report  the  re- 
.sult  under  oath  to  this  office.  In  case  he  finds  his  survey  in 
error,  he  will  report  in  detail  all  discrepancies  with  the  original 
survey,  and  submit  any  explanation  he  may  have  to  offer  as  to 
the  cause.  If,  on  the  contrary,  he  should  report  his  survey  cor- 
rect, a  joint  survey  will  be  ordered  to  settle  the  diflerences  with 
the  surveyor  who  reported  the  error. 

JOINT  SURVEY. 

51. — A  joint  survey  must  be  made  within  ten  days  after  the 
date  of  order,  unless  satisfactory  reasons  are  submitted,  under 
oath,  for  a  postponement. 

52. — The  field  work  must  in  every  sense  of  the  term  be  a 
joint  and  not  a  separate  survey,  and  the  observations  and  meas- 
urements taken  with  the  same  instrument  and  chain,  previously 
tested  and  agreed  upon. 


240      SURVEYOR  GENERAL'S  RULES 

53.— The  deputy  surveyor  found  in  error,  or  if  both  are  in 
error  the  one  who  reported  the  same,  will  make  out  the  field 
notes  of  the  joint  survey,  which,  atler  being  duly  signed  and 
sworn  to  by  both  parties,  must  be  transmitted  to  this  office. 

51.— The  sur?eyor  found  in  error  will  be  required  to  pay  all 
expenses  of  the  joint  survey  and  preliminary  examinations 
incident  thereto,  including  ten  dollars  per  day  to  the  surveyor 
whose  work  is  proved  to  be  substantially  correct. 

,"55. — Your  field  work  must  be  accurately  and  properly  per- 
formed, and  your  returns  made  in  conformity  with  the  fore- 
going instructions.  Errors  in  the  survey  must  be  corrected  at 
your  own  expense,  and  if  the  time  required  in  the  examina- 
tion of  your  returns  is  increased  by  reason  of  your  neglect  or 
carelessness  you  will  be  required  to  make  an  additional  deposit 
for  office  work.  You  will  be  held  to  a  strict  accountability  for 
the  faithful  discharge  of  your  duties,  and  will  be  required  to 
observe  fully  the  requirements  and  regulations  in  force  as  to 
making  mineral  surveys.  If  found  incompetent  as  a  Surveyor, 
careless  in  the  discharge  of  your  duties,  or  guilty  of  a  violation 
of  said  regulations,  your  appointment  will  be  promptly  revoked. 

56.— All  former  instructions  inconsistent  with  the  foregoing 
are  hereby  recalled. 

In  connection  with  these  rules  are  given  certain  forms 
for  the  Surveyor's  return,  all  of  which  are  printed  under 
"Application  for  Patent."  (p.  244.) 


SURVEYOR  GENERAL'S  CIRCULAR. 


The  office  has,  for  the  information  of  parties  desiring  to 
patent  their  claims,  issued  the  following  circular,  under 
date  of  May  1,  1886: 
To  Applicants  for  Mineral  Survey  Orders  in  tJie  District  of  Colorado: 

Your  attention  is  directed  to  the  following  requirements  in 
the  conductof  your  business  with  this  office,  the  .same  being  based 
upon  the  United  .'States  mining  laws  and  circular  and  special 
instructions  from  the  Hon.  the  Commissioner  of  the  General 
Land  Office. 

1.  All  applications  for  survey  orders,  descriptive  reports  on 
placer  claims,  or  certificates  of  five  hundred  dollars  expenditure, 
should  be  addressed  to  the  Surveyor  General  and  be  signed  by 
the  claimants,  their  agent  or  attorney. 


SURVEYOR  GENERAL'S  CIRCULAR.  241 

2.  Each  application  should  contain 

(a)  The  name  of  the  claimant  in  full,  and  as  it  is  desired  to 
appear  in  the  applicaiion  for  patent. 

(6)    The  name  of  the  claim. 

(c)  The  names  of  the  land  and  mining  district  in  which 
the  claim  is  located. 

3.  Yon  are  required  to  file  with  each  application  for  survey 
order,  a  copy  of  the  record  of  location  of  the  claim,  properly 
certified  by  the  recorder  having  charpe  of  the  records  of  the 
mining  locations  in  the  county  where  the  claim  is  situate. 

4.  The  deputy  mineral  survewr  is  re(iuired  to  survey  the 
claim  in  strict  conformity  with  the  location  upon  which  the 
order  of  survey  is  based.  You  are,  therefore,  advised  before 
filing  your  api)lication  to  see  that  your  location  has  been  made 
in  compliance  witli  law  and  regulations,  and  that  it  properly 
describes  the  claim  for  which  patent  is  sought.  See  General 
Land  Office  circular,  dated  November  20,  ISTi.—^ifickel,  562.) 

5.  Par.  84,  General  Land  Offlce  Circular,  dated  October  31, 
188L  relating  to  the  expense  of  office  work  connected  with  the 
survey  of  mineral  claims,  reads  as  follows : 

"  With  regard  to  the  platting  of  the  claim  and  other  office 
work  in  the  Surveyor  General's  office,  that  officer  will  make  an 
estimate  of  the  cost  thereof,  which  amount  the  claimant  will 
deposit  with  anv  assistant  United  States  treasurer,  or  designated 
depository,  in  favor  of  the  United  States  treasurer,  to  be  passed 
to  the  credit  of  the  fund  created  by  '  individual  depositors  for 
surveys  of  the  public  lands,'  and  tih:  with  tin-  Surveyor  Genera! 
duplicate  certificates  of  .such  deposit  in  the  usual  manner." 

G.  The  following  is  the  estimated  cost  of  platting  and  other 
oflBce  work  in  connection  with  the  survey  of  mineral  claims : 

Lode  claim S30.00 

Placer  claim 30.00 

Mill-site  claim 30.00 

Mill-site  included  in  one  survey  with  lode  claim  15.00 
Each  lode  claim  included  in  the  survey  of  a 

placer  claim 15.00 

Several  lode  or  placer  locations  included  in  one 

survey,  each  location 30,00 

Descriptive  report  on  placer  claim  taken  by  legal 

sub-divisions 5.00 

7.  Should  the  office  work,  in  any  case,  amount  to  more 
than  the  above  estimate,  an  additional  "deposit  will  be  required. 


242         SURVEYOR  GENERALS  CIRCULAR. 

8.  In  districts  where  there  is  no  United  States  depository, 
you  should  deposit  with  the  nearest  assistant  United  States 
treasurer,  or  depository,  and  in  all  cases  immediately  forward 
the  original  certificate  lo  the  Secretary  of  the  Treasury  and  the 
duplicate  to  this  office,  retaining  the  triplicate  for  your  own  use 
and  security.  Under  no  circumstanees  will  the  deposit  be  made 
by  the  Surveyor  General. 

9.  An  application  for  an  amended  survey  order  mast  be 
accompanied  with  a  statement  setting  forth  fully  the  reasons  for 
the  proposed  amendment  and  all  the  material  facts  in  the 
matter. 

10.  An  application  fo^the  survey  of  a  claim  already  sur- 
veyed must  be  accompanied  with  a  certificate  (rom  the  register 
of  the  land  otflce  that  application  for  patent  ba.sed  upon  such 
prior  survey  is  not  pending;. 

11. — Upon  discovery  of  any  error  or  defect  in  an  order,  you 
are  requested  to  return  it  to  this  office  for  correction  or  amend- 
ment. 

12.— Rescinded. 

13.— The  order  of  approval  of  surveys  of  mineral  claims  is 
prescribed  by  General  Land  Office  circular,  dated  March  3,  1881, 
as  follows : 

"The  mining  survey  first  applied  for  shall  have  priority  of 
action  in  all  its  stages  in  the  office  of  the  Surveyor  General,  in- 
cluding the  deliver^  thereof,  over  any  other  survey  of  the  same 
ground  or  any  portion  thereof." 

"When  the  survey  first  authorized  is  not  returned  within  a 
reasonable  period,  and  tue  applicant  for  a  conflicting  survey 
makes  affidavit  that  he  believes  (stating  the  reasons  for  hLs  be- 
lief), that  such  first  applicant  has  abandoned  his  purpose  of  hav- 
ing a  survey  made,  or  is  deferring  it  for  vexatious  purposes, 
to-wit,  to  postpone  the  subse(iuent  applicant,  the  Surveyor  Gen- 
eral shall  give  notice  of  such  charges  to  such  first  applicant,  and 
call  upin  him  for  an  explanation  under  oath  of  the  delay.  He 
shall  also  require  the  deputy  mineral  surveyor  to  make  a  full 
statement  in  writing,  explanatory  of  the  delay  ;  and  if  the  Sur- 
veyor General  shall  conclude  that  good  and  sufficient  reasons 
for  such  delay  do  not  exist,  he  shall  authorize  the  applicant  for 
the  conflicting  survey  to  proceed  with  the  same  ;  otherwi.se,  the 
order  of  proceeding  shall  not  be  changed." 

"Whenever  an  applicant  for  a  survey  shall  have  reason  to 
suppose  that  a  conflicting  claimant  will  also  apply  for  a  survey 
for  j)atent,  he  may  give  a  notice  in  writing  to  the  Surveyor  Gen- 
eral, particularly  describing  such  conflicting  claim,  and  file  a 


SURVEYOR  GENERAL'S  CIRCULAR.  243 

copy  of  the  notice  of  location  of  such  conflicting  claim.  In  such 
case  the  Surveyor  General  will  not  order  or  authorize  any  survey 
of  such  conflicting  claim  until  the  survey  first  applied  for  has 
been  examined,  completed,  approved  and  platted  and  the  plats 
delivered." 

14.  Your  attention  is  directed  to  the  first  three  paragraphs 
of  General  Land  Office  circular  dated  December  4, 1884,  viz.: 

"1.  The  rights  granted  to  locators  under  section  2322,  Re- 
vised Statutes,  are  restricted  to  such  locations  on  veins,  lodes  or 
ledges  as  mav  be  'situated  on  the  public  domain:  In  applica- 
tions for  lode"  claims  where  the  survey  conflicts  with  a  prior  valid 
lode  claim  or  entry,  and  the  ground  in  conflict  is  excluded,  the 
applicant  not  onlv  has  no  right  to  the  excluded  ground,  but  he 
has  no  right  to  that  portion  of  any  vein  or  lode  the  top  or  apex 
of  which  lies  within  such  excluded  ground,  unless  his  location 
was  prior  to  Mav  10,  1872.  Ills  right  to  the  lode  claimed  termin- 
ates where  the  lode,  in  its  ownward  course  or  strike,  intersects 
the  exterior  boundary  of  such  excluded  ground  and  passes 
within  it." 

"2.  The  end-line  of  his  survey  should  not,  therefore,  be 
established  beyond  such  intersection,  unless  it  should  be  neces- 
sary so  to  do  for  the  purpose  of  including  ground  held  and 
claimed  under  a  location  which  was  made  upon  public  land  and 
valid  at  the  time  it  was  made.  To  include  such  ground  (which 
may  possibly  embrace  other  lodes)  the  end-line  of  the  survey 
may  be  established  wuthln  the  conflicting  survey,  but  the  line 
must  be  so  run  as  not  to  extend  any  further  into  the  conflicting 
survey  than  may  be  necessary  to  make  such  end-line  parallel  to 
the  other  end  line,  and  at  the  same  time  embrace  the  ground  so 
held  and  claimed.  The  useless  practice  in  such  cases  of  extend- 
ing both  the  side  lines  of  a  survey  into  the  conflicting  survey  and 
establishing  an  end-line  wholly  within  it,  beyond  a  point  neces- 
sary under  the  rule  just  stated,  will  be  discontinued." 

"3.  These  instructions  will  be  obser\-ed  by  Surveyors  Gen- 
eral in  all  cases  where  surveys  have  not  been  approved  by  them 
prior  to  receipt  thereof." 

15.  You  have  the  option  of  employing  any  U.  S.  deputy 
mineral  surveyor  in  the  district  to  execute  the  order  of  survey, 
and  must  mafco  satisfactory  arrangements  wiih  such  surveyor 
for  the  payment  for  his  services  and  those  of  his  assistants  in 
making  the  survey,  as  the  United  States  will  not  be  held  respon- 
sible for  the  payment  of  the  same.  The  duty  of  the  deputy 
surveyor  in  anv  particular  case  ceases  when  he  has  executed  the 
survey  and  returned  the  same  to  this  office.  He  is  not  allowed 
to  prepare  for  the  mining-claimant  the  papers  in  support  of  an 
application  for  patent,  being  precluded  from  acting  either 
directly  or  indirectly  as  attorney  in  mineral  claims. 

16.  You  are  advised  of  your  right  of  appeal  to  the  Hon. 
Commissioner  of  the  General  Land  Office  from  the  approval  or 


244        SURVEYOR  GENERAL'S  CIRCULAR. 

disapproval  of  the  survey  of  your  claim-  The  appeal  must  be  in 
writing  or  in  print,  and  should  set  forth  in  brief  and  clear  terms 
the  Bpecitic  points  of  exception  to  the  ruling  appealed  from. 


1*  APPLICATION  FOR  PATENT. 


The  following  pages  are  intended  to  contain  the  forms  • 
of  application   and  proceedings  to   obtain  Patent  in  the 
order  of  time  in  v\rhich  the  several  papers  should  be  made 
and  filed. 

The  Official  Survey. — A  citizen  of  the  United 
States,  or  one  who  has  declared  his  intention  to  become 
such,  or  a  corporation  chartered  within  the  United  States, 
being  the  holder  of  the  possessory  title  to  a  lode  claim, 
causes  application  for  an  official  survey  to  be  made  by  an 

(  A.)      APPLICATION   FOR   OEDEE   FOE   SURVEY.  2  ■■ 

Denver,  February  1,  1888. 
To  the  U.  S.  Surveyor  General,  District  of  Colorado,  Denver. 

Sir:— You  are  requested  to  issue  an  order  for  an  official 
survey  of  the  mining  claim  of  Jesse  White,  upon  the  Bear 
Lode,  located  in  Alpine  Mining  District,  Lake  County,  Lead- 
ville  Land  District,  Colorado. 

I  herewith  transmit  certified  copy  of  the  location  certificate 
of  said  claim,  and  have  deposited  for  office  fees  3*  on  same  $30.00 


l*._For  many  valuable  suggestions  upon  points  covered  by 
this  book,  especially  in  this  chapter,  I  am  under  obligations  to 
A.  E.  Chase,  Esq.,  Deputy  U.  S.  Mineral  Surveyor,  Georgetown; 
Richard  Harvey,  Esq.,  Ilegistcr  U.  S.  Land  Office,  Central; 
and  Hon.  Oney  Carstarphen,  Surveyor  General. 

2*.— The  forms  f  jr  placer  and  mill-site  applications  are  sub- 
stantially the  same, 

3*._For  costs  in  Surveyor  General's  office.  See  Su/es6and  7 
page  241. 


APPLICATION    FOR    PATENT.  245 

to  the  credit  of  the  Treasurer  of  the  United  States,  at  the  Denver 
National  Bank  ( U.  S.  Depository)  with  request  that  duplicate 
certificate  be  forwarded  to  you. 

Send  order  to  WUliam  lij/rd  Page,  U.  8.  Dep.  Min.  Sur.,  at 
Leadville,  Colonulo.    Yours,  respectfully, 

JESSE  WHITE, 

Claimant. 

By  GEORGE  JI.  KOHN,  Attorney. 
Post  Office  address  (of  Claimant)  Silver  Cliff,  Colorado. 
Post  Office  address  (of  .\ttoruey)  17  Claylon  Block,  Denver. 

The  payment  mentioned  in  the  application  is  not  by 
draft  to  the  Surveyor  General  but  by  deposit  in  a  bauk 
recognized  as  a  United  States  Depository.  Upon  payment 
to  such  bauk  the  claimant  receives  triplicate  certificates  of 
deposit,  of  which  he  mails  the  Original  to  the  Secretary  of 
the  Treasury  at  Washington;  the  Duplicate  he  mails  with 
the  letter  (A)  to  the  Surveyor-General ;  (or  the  bank  for- 
wards it)  and  the  Triplicate  he  retains. 

This  certificate  is  a  mere  receipt  for  money  and  has  no 
further  value,  except  where  the  application  is  withdrawn, 
in  which  case,  provided  no  office  work  has  been  done,  the 
money  will  be  allowed  to  apply  on  another  slirvey. 

In  reply  to  the  Application  (A)  the  Surveyor  mails  to 
the  attorney  for  the  applicant  the 

(B.)   ORDER  FOR  SURVEY  OF  MINERAL  CLAIM. 

DEPARTMENT  OF  THE  INTERIOR,  I 
Office  ok  U.  S.  Surveyok-Geneual.    s 

Denver,  Colo.,  February  2, 1888. 

To  any  U.S  Deputy  Mineral  Surveyor  in  the  District  of  Colorado. 

Sir:— You  are  hereby  directed  to  sur\'ey  the  claim  of  Jesse 
White,  upon  the  li'dr  Lode,  in  Alpine  Mining  District,  Lake 
Countv,  Colorado.  This  survey  will  be  designated  "gurv-ey  No 
5,555,  Leadville  Land  District,"  and  most  be  made  in  strict  con- 
formity with  the  location  certificate  (or  amended  location  cerlifl- 
cate)  dated  June  28, 1885. 

ONEY  CARSTARPHEN. 
U.  S.  Surveyor-General  for  Colorado. 


246  APPLICATION    FOR   PATENT. 

The  numbers  of  the  survey  lots  were  formerly  consec- 
utive to  each  mineral  district,  but  since  the  abolition  of 
mineral  districts  they  are  eonsecutive  throughout  the  State, 
beginning  with  No.  4,501,  with  which  number  the  new 
series  was  commenced  November  30,  1886. 

This  order  of  survey  "  B  "  being  received,  is  delivered 
to  such  Deputy  U.  S.  Surveyor  as  the  applicant  may  prefer 
which  deputy  must  proceed  in  person  to  the  premises, 
make  an  actual  survey,  and  mark  each  post  with  the  No. 
of  the  survey  and  the  No.  of  the  corner. 

Where  there  has  been  a  previous  survey  from  which 
the  certificate  of  location  has  been  made,  it  will  be  followed. 

The  copy  of  location  certificate  mentioned  as  enclosed 
in  "A"  must  be  certified  by  the  recorder. 

The  Deputy,  in  making  his  official  survey,  must  follow 
the  original  lines  as  called  for  in  such  copy. 

The  Surveyor-General  will  not  allow  a  serious  depart- 
ure from  the  lines  called  for  in  the  Location  Certificate,  with- 
out insisting  upon  the  filing  of  an  amended  or  re-location 
certificate  in  the  office  of  the  recorder  of  the  proper  county, 
and  the  deposit  of  a  certified  copy  of  such  amended  record 
in  the  Surveyor-General's  office,  and  when  such  certified 
copy  has  been  filed  an  amended  order  of  survey  issues  and 
if  it  takes  in  any  new  ground  the  number  of  the  survey  lot  is  post- 
poned to  all  the  mimbers  which  have  intervened.  An  additional 
fee  of  $2.50  is  charged  for  the  amended  order;  besides  the 
cost  of  additional  labor,  if  any,  imposed  on  the  Surveyor- 
General's  office. 

Or  if  the  certificate  be  indefinite,  or  if  the  end  lines 
are  not  parallel,  or  if  not  properly  tied,  or  if  the  certificate 


APPLICATION    FOR    PATENT.  247 

be  without  date  or  otherwise  irregular,  it  will  be  returned 
for  amendment.  Care  in  the  first  instance  will  obviate 
delays  on  such  grounds. 

For  form  of  amended  location  certificate  see  pages  71 
and  73. 

In  surveys  upon  old  lodes  (before  May  10,  1872,)  whose 
location  certificates  were  not  supposed  to  call  for  course  or 
monument,  the  deputy  is  presumed  to  make  his  official 
survey  according  to  the  location  and  original  claim  of  the 
locator,  but  practicallj'  it  is  made  wherever  it  may  be  sup- 
posed to  cover  the  vein,  or  wherever  vacant  ground  can  be 
found  to  include  in  the  survey. 

In  almost  all  cases  of  early  locations  ( and  in  many 
recent  ones )  it  is  advisable  to  make  a  formal  re-location 
before  asking  for  order  of  survey.  This  may  save  time  in 
the  surveyor's  office  and  prevent  fatal  results  in  resisting 
adverse  claims. 

For  instructions  as  to  manner  of  making  survey  on  the 
ground,  see  "  Surveyor-General' s  Rules;  "  also  page  43. 

•  The  survey  being  complete  the  deputy  makes  and  for- 
wards to  the  Surveyor-General  a  diagram  of  the  lode  giving 
its  corners,  courses,  distances,  ties,  adjoiners  and  improve- 
ments which  is  known  as 

(C.)   THE  PRELIMINARY  PLAT. 

The  plat  made  by  the  deputy  was  formerly  treated  as 
the  official  plat  of  the  claim,  from  which  the  connected 
plat  of  all  claims  kept  by  the  Surveyor-General  was  made, 
bat  under  present  practice  the  Deputy's  plat  is  only  treated 
as  a  correction  to  the  field  notes,  all  official  plats  now  being 
made  in  the  office  of  the  Surveyor-General. 


248  APPLICATION    FOR   PATENT. 

Survey  No.  5,555  LeadvUle  Land  District. 


DIAGRAM. 


Surveyed  February  8-0. 188S,  by  William  Byrd  Page,  U.  S. 
Deputy  Mineral  Surveyor. 

Along  with  this  diagram,  or  preliminary  plat  "C,"  the 
deputy  forwards  to  the  Surveyor-General  his 

(  D.)    FIELD   NOTES, 

the  following  form  heing  arranged  to  illustrate  the  more 
ordinary  complications : 

Survey  No.  5,555. 

LeadvUle  Land  District. 

FIELD  NOTES 

Of  the  survey  of  the  claim  of  Jesse  White,  upon  the  Bear 
Lode,  in  Alpine  Mining  District,  Lake  County,  Colorado. 

Surveyed  by   William  Byrd  Page,   U.  S.  Deputy  Mineral 
Surveyor. 

Survey  begun  February  8, 1888,  and  completed  February  9, 
1888. 

Address  of  Claimant : 

JESSE  WHITE,  Silver  VUff,  Oolorado. 


Feet. 


SURVEY   NO.   5,555. — BEAR   LODE. 

Beginning  at  Cor.  No.  1. 

Identical  witn  Cor.  No.  1  of  the  location. 

A  spruce  post,  5  ft.  long,  4  ins.  square,  set  2  ft.  in  the 
ground,  with  mound  of  stone,  marked  ssss 
whence 

The  W.  14  cor.  Sec.  2'2,  T.  11  S.  R.  81  W.  of  the  6th 
Prill  t  i\  jilMeridian,  bears  S.  79°  34'  W.  1378.2  ft. 


APPLICATION    FOR    PATENT.  249 

C!or.  No.  1,  Gottenburg  lode  (unsurveycd),  Neals 
Mattsoii,  claimant,  bears  S.  40°  29'  W.  187.G7  ft. 

A  pine  12  ins.  dia.,  blazed  and  marked  B.  T.  ^aar, 
bears  S.  7°  25' E.  22  ft. 

Mount  Ouray  bears  N.  11°  E. 
Hiawatha  Peak  bears  N.  47°  45'  W. 

Thence  S.  2-1°  4.5'  W. 
Va.  15°  12'  E. 
I'il2.         To  trail,  course  N.  W.  and  S.  E. 
1365.28      To  Cor.  2. 

A  granite  stone  25x9x6  ins.,  set  18  ins.  in  the  ground 
chiseled  55*55    whence 

Cor.  No.  2  of  the  location  bears  S.  24° 45'  W.  134.72ft. 
Cor.  No.  1,  Sur.  No.  2560,  Carnarvon  Lode,  David 
Davis  et  al.,  claimants,  bears  S.  3°  28'  E.  11G.6  ft. 

North  end  of  bridge  over  Columbine  creek  bears  S. 
65°  15'  E.  650  ft. 

Thence  N.  65°  15'  W. 
Va.  15°  20'  E. 

152.         Intersect  line  4-1,  Sur.  No.  2560,  at  N.  38°  52'  W.  231.2  ft. 

from  Cor.  No.  1. 
300.         To  Cor.  No.  3. 

A  cross  at  corner  point,  and  55V5  chiseled  on  a 
granite  rock  in  place,  20xlLs6  ft.  above  the  general 
level,  whence 

Cor.  No.  3  of  the  location  bears  S.  24°  45'  W.  134.72  ft. 
A  .spruce  16  in.s.  dia.,  blazed  and  marked  B.  T.  gs'sB 
bears  S.  58°  W.  18  ft. 

Thence  N. 24°  45' E. 
Va.  15°  20'  E. 
73.4       Intersect  line  4-1  Sur.  No.  2,560  at  N.  38°  52'  W.  396.4  ft. 

from  Cor.  No.  1. 
237.         To  trail,  course  N.  W.  and  S.  E. 
10C0.9       Intersect  line  2-3,  Gottenburg  lode,  at  N.  25°  56'  W.  76.26 

ft.  from  Cor.  No.  2. 
1365.28      To  Cor.  No.  4. 

Identical  with  Cor.  No.  4  of  the  location. 
A  pine  post  4.5  ft.  long  5  ins.  square,  set  one  foot  in 
the  ground,  with  mound  of  earth  and  stone,  marked 
66*55  whence 


250  APPLICATION  FOR   PATENT. 

A  cross  chiseled  on  rock  in  place,  marked  B.  R.  bbVw 
bears  N.  28°  W  E.  68.9  ft. 

Thence  S.  65°  15'  E. 
Va.  15°  12'  E. 
28.5       Intersect  line  4-1,  Gottenburg  lode,  at  N.  25°  56'  W. 285.13 

ft.  from  Cor.  No.  1. 
300.         To  Cor.  No.  1,  the  place  of  beginning.  *1. 


AREA. 

Total  area  of  JSearlode 9,403  acres 

Less  area  in  conflict  with 

Sur.  No.  2,560 124  acre 

Gottenburg  lode 1.363    "    1.487  acres 

Net  area  Bear  lode 7.916  acres 


LOCATION. 
This  claim  is  located  in  the  W,  %  Sec.  22,  T.  11  S.  R.  81  W. 


EXPENDITURE  OF  FIVE  HUNDRED  DOLLARS. 

I  certify  that  the  value  of  the  labor  and  improvements  upon 
this  claim,  placed  thereon  by  the  claimant  and  his  grantors,  is 
not  less  than  five  hundred  dollars,  and  that  said  improvements 
consist  of 

The  discovery  shaft  of  the  Bear  lode,  6x3  ft.,  10  ft.  deep  in 
earth  and  rock,  which  bears  from  Cor.  No.  2  N.  6°  42'  W.  287.5  ft. 

Value  $80. 

An  incline  7x5  ft.,  45  ft.  deep  in  coarse  gravel  and  rock, 
timbered,  cour.se  N.  .58°  15'  W.,  dip  62°,  the  mouth  of  which  bears 
from  Cor.  No.  2  N.  15°  37'  E.  908  ft.  Value  »550. 

A  log  shaft -house  14  ft.  square,  over  the  discovery  shaft. 

Value  «100. 

Two-thirds  interest  in  an  adit  6.5x5  ft.,  runnings  due  west 
835  ft.,  timbered,  the  mouth  of  which  bears  from  Cor.  No.  2  N.  61° 
15' E.  920  ft. 

*1.  Adjoining  claimants  are  mentioned  as  they  are  reached 
in  the  notes,  as  they  ambit  the  claim. 


APPLICATION    FOR    PATENT.  25  r 


This  ariit  is  in  course  of  construction  for  the  development  of 
the  Bear  lode  and  also  for  the  Carnarvon  lode,  Survey  No.  2,560, 
David  Davis  et  al.,  claimants,  the  reniaiiiinK  one-third  interest 
therein  having  already  been  included  in  the  estimate  of  five 
hundred  dollars  expenditure  upon  the  latter  claim. 

Total  value  of  adit,  813,000. 

A  drift  6.5  x  1  ft.  on  the  Bear  lode,  beginning  at  a  point 
in  adit  .STO  ft.  from  the  mouth,  and  running  N.  20°  20'  E.  195  ft., 
thence  N.  51°  15'  E.  40  ft.  to  breast.  Value  S2,800. 

I  ftirther  certify  that  no  portion  of  the  improvements 
claimed  have  been  included  in  the  estimate  of  five  hundred 
dollars  expenditure  upon  any  other  claim. 


OTHER  IMPROVEMENTS. 


A  log  cabin  35x23  ft.,  the  S.  W.  corner  of  which  bears 
from  Cor.  No.  3  N .  30°  44'  E.  496  ft. 

Said  cabin  belongs  to  Jesse  White,  the  claimant. 

An  adit  6x4  ft.,  running  N.  70°  50'  W.  100ft.,  the  mouth 
of  which  boars  from  Cor.  No.  1  S.  58°  12'  W.  323  ft.,  belonging 
to  Neals  Mattson,  claimant  of  the  Gottenburg  lode. 


INSTRUMENT. 

The  survey  was  made  with  a  Young  &  Sons  mountain  tran- 
sit No.  ;'322,  with  Smith's  solar  attachment.  The  courses  were 
deflected  from  the  true  meridian  as  determined  by  solar  ob- 
servations.   The  distances  were  measured  with  a  50  ft.  steel  tape. 

MEMORANDA  AS  TO  CHAINMEN,  AC.     PART  OF  "D." 

List  of  the  names  of  individuals  employed  to  assist  in  run- 
ning, measuring  and  marking  the  lines  and  corners  described 
in  the  foregoing  field  notes  of  the  survey  of  the  claim  of  Jesse 
While  upon  the  Bear  lode,  in   Alpine  Mining    District,    io/te 
County,  Colorado. 

Jp.  J.  Bancroft,  )  ruunp™.- 
W.  A.  Jayne.    ]  witnesses. 

AFFIDAVIT  OF  CHAINMEN  OR  OTHER  HELPERS.      PART  OF  "D." 

We  hereby  certify  that  we  assisted  Wm.  Byrd  Page,  U.  S. 
Deputy  Mineral  Surveyor,  in  surveying  the  exterior  boundaries 
ana  marking  the  corners  of  the  claim  of  Jesse  White  upon  the 
Bear  lode,  in  Alpme  Mining  District,  Lake  County,  Colorado, 
and  that  said  survey  has  been  in  all  respects,  to  the  best  of  our 


252  APPLICATION    FOR    PATENT. 

kQowledge  and  belief,  well  and  faithfully  surveyed  and  the 
boundary  monuments  planted  according  to  the  instructions 
furnished  by  the  Surveyor  General. 

F-  J.  Bancroft, 
W.  A.  Jayne. 

Subscribed  and  sworn  to  by  the  above  named  persons  be- 
fore me,  this  10th  day  of  February,  1888. 

Appleton  J.  Ide, 
[Seal.]  Notary  Public. 

AFFIDAVIT  OF  DF.PUTY.      PART  OF  "D." 

I,  William  Byrd  Page,  U.  S.  Deputy  Mineral  Surveyor,  do 
solemnly  swear  that  in  pursuance  of  an  order  from  Oney  Car- 
starphen.  Surveyor  General  of  the  public  lands  in  the  State  of 
Colorado,  bearing  date  the  2d  day  of  February,  1888,  and  in  strict 
conformity  with  the  laws  of  the  United  States,  and  instructions 
furnished  by  said  Surveyor  General,  I  have  faithfully  surveyed 
the  claim  of  J^esse  Ty/(i<e  upon  the  iJe^r  lode,  in  A/ptne  Mining 
District,  Lake  County,  Colorado,  and  do  further  solemnly  swear 
that  the  foregoing  are  the  true  and  original  field  notes  of  such 
survey,  and  that  the  improvements  are  as  therein  stated. 

Wm.  Byrd  Page, 
U.  S.  Deputy  Mineral  Surveyor. 

Subscribed  by  said  Wm.  Byrd  Page,  U.  S.  Deputy  Mineral 
Surveyor,  and  sworn  to  before  me  this  \Qth  day  of  February 
1888. 

Appleton  J.  Ide, 

[Seal.]  Notary  Public. 

The  Preliminary  Plat  "C.:'  and  Field  Notes  "D."  con- 
taining, besides  what  are  strictly  the  Field  Notes,  also  the 
memoianda  of  Improvements,  list  of  helpers,  &c.,  with  cer- 
tificate and  affidavit  as  above  given,  are  then  forwarded  to 
the  Surveyor  general,  who  compares  the  plat,  reviews  the 
notes,  &c.,  and  if  errors  appear,  as  they  often  do,  or  if  he 
cannot  make  the  connections  agree  with  his  "connected 
plat,"  they  are  returned  for  correction  ;  but  if  correct,  the 
Field  Notes  are  endorsed  as  follows  : 

(e.)  approval  of  survey. 

Office  of  U.  S.  Surveyor  Gen'l,  | 
Colorado.        f 

Denver,  February  13,  1888. 

The  foregoing  field  notes  of  the  survey  of  the  claim  of  Je*se 
White  upon  the  Bear  lode,  in  Alpine  Mining  District,  Lake 
County,  Colorado,  surveyed  by  Wildani  Byrd  Page,  U.  S.  Deputy 


appli::ation  for  patent.  253 

Allncral  Surveyor,  liaviiis  been  critically  examined,  the  uecea- 
sary  corrections  and  explanation.s  mafle,  the  .said  field  notes  and 
the  surveys  they  describe  are  herebyjipproved. 

ONEY  CAR.STARPHEN, 

U.  8.  Surveyor  General  for  Colorado. 

The  Field  Notes  "  D"  endorsed  with  the  official  appro- 
val "  E  "  are  then  bound  and  kept  permanently  for  refer- 
ence in  the  Surveyor-General's  office  after  he  has  caused  to 
be  made  from  them 

(  F,  )   THE  FINAL  PLAT, 

of  which  the  original  is  retained  in  the  Surveyor  General's 
office,  one  copy  is  forwarded  by  the  Surveyor-General  to  the 
proper  local  Land  Office  and  two  copies  are  forwarded  to 
the  Deputy  Surveyor. 

The  original  and  each  copy  of  the  final  plat  "  F  "  is 
certified  by  endorsement  thereon,  as  follows  : 

(G.)    SUEVEYOE    general's    APPROVAL    OF   SURVEY     AND 
CERTIFICATE  OF  $500  IMPROVEMENTS. 

Date  of  (Amended)  Location,  June  28,  1885.  Survey  No. 
5555,  Leadville  Land  District. 

Plat  of  the  claim  of  Jesse  White  upon  the  Bear  lode,  Alpine 
Mining  District,  Lake  County,  State  of  Colorado,  containing  an 
area  of  7.91(5  acres..  Scale  of  20O  feet  to  the  inch.  Variation  15° 
i20' east.  Surveyed  by  Wm.  Byrd  Page,  U.S.  Deputy  Mineral 
Surveyor,  February  8-9,  1838. 

The  original  Field  Notes  of  the  survey  of  the  claim  of  Jetse 
IVhile  upon  the  Bear  lode  from  which  this  plat  has  been  made, 
have  been  examined  and  approved,  and  are  on  file  in  this  office, 
and  I  hereby  certify  that  they  furni-sh  such  an  accurate  descrip- 
tion of  said  mining  claim  as  will,  if  incorporated  into  a  patent, 
serve  fully  to  identify  the  premises,  and  that  such  refereiico  is 
made  therein  to  natural  objects,  and  permanent  monuments  as 
will  jKjrpetuate  and  fix  the  locus  thereof.  I  further  certifv  that 
the  value  of  the  labor  and  improvements  placed  thereon  "bv  the 
applicant  or  his  grantors,  is  not  less  than  five  hundred  dollars  ; 
and  that  said  improvements  consist  of  The  discovery  shaft,  an 
incline,  a  shaft  house,  an  interest  in  an  adit,  and  a  drift,  as  appeara 


254  ^APPLICATION    FOR   PATENT. 

by  the  afSdavit  of  the  Deputy  Surveyor.  And  I  further  certify 
that  this  is  a  correct  plat  of  said  mining  claim  made  in  conform- 
ity with  said  original  field  notes  of  the  survey  thereof. 

Oney  Carstarphen, 
U.  S.  Surveyor  General  for  Colorado 
U.  S.  Surveyor  General's  Office,  Denver,  Colorado, 
February  13,  1888. 

Along  with  the  two  copies  of  the  Diagram  "  F,"  with 
its  endorsement  "  G,"  the  Surveyor  General  forwards  to  the 
surveyor  for  claimant  the 

(H.)    TRANSCRIPT    OF    FIELD   NOTES,    otherwise  called 
"approved  field  notes." 

This  instrument  "H''  is  verbatim  the  same  as  "D,"  pre- 
ceded by  the  words  "Transcript  of,"  including  all  its  exhibits,  but 
not  the  Surveyor  General's  Certificate  "G."  Instead  of  the  cer- 
tificate "  G,"  huch  transcript  is  certified  zs  follows  : 

(I.)      SURVEYOR    general's    CERTIFICATE    TO    TRAN- 
CRIPT.    "H." 

I  certify  that  the  foregoing  transcript  of  the  field  notes  of 
the  survey  of  the  mining  claim  of  Jesse  White,  upon  the  Bear 
lode,  situate  in  Alpine  Mining  District,  County  oi  Lake,  and  State 
of  Colorado,  has  been  correctly  copied  from  the  original  notes  of 
said  survey  on  file  in  this  office;  that  said  field  notes  furnish  such 
an  accurate  description  of  said  mining  claim  as  will,  if  incorpo- 
rated into  a  patent,  serve  fully  to  identify  the  premises,  and  that 
such  reference  is  made  therein  to  natural  objects  and  permanent 
monuments  as  will  perpetuate  and  fix  the  locus  thereof ;  and  that 
the  value  of  labor  and  improvements  upon  the  said  mining  claim, 
placed  thereon  by  said  claimant  or  his  grantors,  is  not  le.ss  than 
Five  Hundred  Dollars,  as  sworn  to  by  the  Deputy  Surveyor,  and 
that  said  improvements  consist  of  the  discovery  shaft,  an  incline, 
a  shaft  hatiie,  an  interest  in  an  adit,  and  a  drift. 

I  further  certify,  that  the  plat  thereof  filed  in  the  U.  S.  Land 
Office  at  Leadville,  is  correct,  and  in  conformity  with  the  fore- 
going field  notes .  Oney  Carstarphen, 

U.  S.  Surveyor  General  for  Colorado. 

U.  S.  SURVEYOR  GENERAL'S  OFFICE, 
Denver,  Colorado, 
February  13,  1888. 

These  matters  are  all  preliminary  to  the  Application 
for  Patent  proper  which  is  made  to  the  local  Land  Office, 
these  proceedings  in  the  Surveyor  General's  office  being 
necessary  because  each  lode  claim  must  be  separately  sur- 


APPLICATION    FOR    PATENT.  255 

veyed,  whereas  in  case  of  asricultural  land  a  party  simply 
enters  upon  a  particular  quarter  section  which  has  been 
already  surveyed  and  platted. 


DELIVERY  OF    PAPERS  TO  THE  ATTORNEY. 

The  above  transcript  "  H,"  received  from  the  Surveyor 
which  is  generally  termed  the  "Approved  Field  Notes,' 
the  deputy  then  delivers,  along  with  the  plats  or  diagrams 
received  from  the  same  office,  to  the  attorney  for  the  claim- 
ant, who  is  supposed  to  supervise  the  signing  and  filing  of 
all  the  subsequent  papers,  and  takes  charge  of  the  applica- 
tion from  this  point,  although  in  fact  the  further  papers 
and  the  superintendence  of  the  posting,  etc  ,  are  frequently 
left  in  charge  of  the  deputy. 


eespp:ctive  duties  of  surveyor  and  attorney. 

The  Deputy  Surveyors  are  not  allowed  to  act  as  attor- 
neys. Sichel  5G7.  See  p.  232.  The  surveyor's  services 
seem  properly  to  end  with  the  preparation  of  papers  for  tho 
Surveyor  General's  Office  and  the  reception  of  papers  from 
that  office.  These  latter, '  he  turns  over  to  the  attorney, 
who  makes  out  or  supervises  all  papers  intended  for  the 
Land  Office.  The  Deputy's  aid  should  not,  however,  be 
discarded  pending  the  application,  as  with  many  of  the 
forms  he  is  more  familiar  than  attorneys  generally  are. 
The  profession  ought  not  to  object  to  their  filling 
out  the  ordinary  blanks,  especially  in  cases  where  no 
adverse  claim  is  expected,  nor  to  their  attending  to  posting, 
publication,  proofs  of  citizenship,  etc.,  if  they  will  not  at- 
tempt to  make  out  the  location  and  re-location  certificates. 


256  APPLICATION    FOR    PATENT. 

—which  are  strictly  legal  papers, — the  iaterference  of  the 
surveyors  in  these  matters,  generally  leaving  applicants  in 
a  position  where  they  seriously  need  an  attorney's  advice, 
if  not  already  too  late  to  be  of  service.  And  in  cases  of 
Land  Office  contest  any  interference  by  the  Surveyor  would 
be  officious  and  reprehensible. 

The  claimant  or  his  attorney  then  prepares  in  triplicate, 
his 

(K.)    NOTICE  OF   APPLICATION   FOR   U.   S.   PATENT. 

NOTICE  OF  APPLICATION  FOR  U.  S.  PATENT. 
Survey  No.  5555. 

U.  S.  Land  Office,  Leadville,  March  1,  1888. 

Notice  is  hereby  given  that  in  pursuance  of  the  Act  of  Con- 
gress approved  May  10, 1872,  u  esse  While  whose  postoffice  is  Silver 
Cliff,  Ouster  County,  Colorado,  has  made  application  for  a  patent 
for  1365  (1*)  linear  feet  on  the  Bear  Lode,  bearing  silver,  the  same 
being  2150  feet  southwesterly  and  1135  feet  northeasterly  from 
discovery  shaft  thereon,  with  surface  ground  300  feet  in  width, 
situate  in  Alpine  Mining  Uistrict,  Lake  County,  State  of  Colo- 
rado, an  1  described  by  the  official  plat,  herewith  posted,  and  by 
the  field  notes  on  file  in  the  office  of  the  Register  of  Leadville 
Land  Distiict,  Colorado,  as  follows,  viz: 

Beginning  at  corner  No.  1,  whence  the  W.  34  cor.  Sec.  22,  T.  11 
R.  R.  81  W.  of  the  6th  Principal  Meridian,  bears  S.  79°  34'  W. 
1378.2  ft. 

Cor.  No.  1,  Gottenburg  lode  (unsurveyed) .  Neals  Mattson, 
claimant,  hears  S.  40°  29  W.  187.67  ft. 

A  pine  12  ins.  dia.  marked  B.  T.  1-5555  bears  S.  7°  25'  E. 
22  ft. 

Mount  Ouray  bears  N.  11°  E. 

Hiawatha  Peak  bears  N.  47°  45'  W. 

Thence  S.  21°  45'  W.  1242  ft.  to  .trail,  course  N.  W.  and  S.  E. 
1 365  2  ft.  to  cor.  No.  2,  whence  cor.  No.  1,  sur.  No.  2560,  Carnarvon 
lode,  bears  S.  3°  28'  E.  116.6  ft.. 

North  end  of  bridge  over  (Columbine  creek  bears  S.  65°  15'  E. 
G50  ft.  Thence  N.  65°  15'  W.  300  ft.  to  cor.  No.  3,  whence  a  spruce 
16  ins.  dia.  blazed  and  marked  B.  T.  3-55.55  bears  S  .58°  W.  18 It. 
Thence  N.  24°  45'  E.  1365.28  ft.  to  cor.  No.  4,  the  place  of  begin- 
ning ;  containing  7.916  acres  (exclusive  of  .survey  No.  2.560  and  the 
(Jotlenburg  lode),  and  forming  a  portion  of  the  west  Y,  of  section 
22  in  township  11  S.,  range  81  W.  of  the  Sixth  Principal  Meridian, 
^aid  localTftn  being  record(td  in  vol.  77,  page  318  of  tlie  iccordsof 
Lake  County,  Colorado.  Adjoining  claimants,  on  this  lode,  none; 
on  other  lodes,  Neals  Mattson  on  the  north-west  with  the  Gotten- 

1*. — 'f  he  Bear  is  supposed  to  be  a  1.500  foot  location  cut  down  to 
1365  feet  by  end-liuiug  on  a  prior  survey,  under  section  14,  p.  243. 


ArPLICATION    FOK    PATENT.  257 

burg  lode  and  Diivid  Davison  the  south,  with  the  Carnarvou  lode 
the  nearest  kuowii  ciiiims. 

Jesse  While. 
Witness: 

E.Mii.io  I).  DeSoto, 

Fred  C.  Keenmcy. 

One  of  the  notices, '•  K,"  should  be  at  once  posted  on 
the  claim  along  with  one  of  the  certiled  diagrams  received 
from  the  Surveyor  General,  the  two  papers  being  loosely 
attached,  ot,  as  more  usual,  placed  side  by  side,  in  some 
conspicuous  place  on  the  claim  (usually  at  the  discovery 
shaft)  in  presence  of  two  persons  (not  necessarily  disin- 
terested witnesses)  who  attach  their  signatures  as  shown 
upon  the  form  "K." 

Another  of  the  notices  "  K"  is  attached  to 

(l.)  proof  of  posting  notice  and  diagram  on 
the  claim. 

State  of  Colorado,  ) 
Lake  County.  J  " 
Emilio  D.  DeSoto  and  Fred  C.  Keeney,  each  for  himself, 
and  not  one  for  the  other,  being  first  duly  sworn  according  to 
law,  deposes  and  says,  that  he  is  a  citizen  of  the  United  States, 
over  the  age  of  twenty-one  years,  and  was  present  on  the  second 
day  ot  March,  A.  D.  ISSS.  when  a  iihit  representing  the  claim  of 
Jesse  White,  and  certified  us  correet  by  the  United  States  Sur- 
veyor General  of  Colorado,  and  designated  by  him  as  lot  No.  5555, 
together  with  a  noticeof  the  intention  of  said  J^sse  IF/ii^etoapply 
for  a  patent  for  the  mining  claim  and  premises  so  platted,  was 
posted  in  a  conspicuous  ])lace  uj)on  said  mining  claim,  to  wit: 
upon  the  outside  of  the  door  of  the  shaft  house  at  the  discovery, 
wnere  the  same  could  be  easily  seen  and  examined.  The  notice 
so  conspicuously  posted  upon  said  claim  is  herewith  attached 
and  made  a  part  of  this  aflidavit. 

Emilio  D.  DeS<Ho. 

Fred  C.  Keeney. 

Subscribed  and  sworn  to  before  me  this  .second  day  of  March- 
A.  D.  1SS8,  and  1  liereby  certify  that  I  consider  the  above  depo' 
nents  credible  and  reliable  witnesses,  and  that  the  foregoing 
affidavit  and  notice  were  read  by  each  of  them  before  their  sig- 
natures were  affixed  tliereto  and  the  oath  made  by  them 

[seal]  -^PP  ^'"'f  J  ^f'^' 

Notary  Public. 

The  form  "  L  "  is  subscribed  by  the  postiug  witnesses. 

The  applicant  (unless  he  is  one  of  his  own  postiug  witnesses) 

does  not  sign  it.     One  witness  is  not  sulhcieut. 

9 


258  APPLICATION    FOR    PATENT. 

The  third  notice,  "  K,"  signed  by  the  applicant,  but 
not  by  the  witnesses,  goes  with  the  second  of  the  plats  re- 
ceived from  the  Surveyor  General  (page  2i4),  when  it  is  sent 
with  the  first  set  of  papers  to  the  Land  Office,  where  the 
Register  attaches  his  attesting  signature,  and  it  will  remain 
posted  in  the  Land  Office,  while  its  fellow  notice  and  plat 
are  standing  on  the  claim  during  the  period  of  publication. 

The  next  paper  to  be  prepared  is  the 

(M.)   APPLICATION   FOE   PATENT. 

State  of  Colorado,  I  __ 
Lake  County.        j*"^- 

Application  for  patent  for  the  Bear  Lode  Mining  Claim.  To 
the  Register  and  Receiver  of  the  U.  S.  Land  Oflace  at  Leadville, 
Colorado  : 

Jesse  TV/iiie,  whose  postoffice  address  is  Silver  Cliff',  Colorado, 
being  duly  sworn,  according  to  law,  deposes  and  says  :  that  in 
virtue  of  ii  compliance  with  the  mining  rules,  regulations  and 
custom.s,  Ijy  himself  (and  his  grantors),  he,  the  applicant  for 
patent  herein,  has  become  the  owner  of  and  is  in  the 
actual,  quiet  and  undisturbed  possession  of  1-500  linear  feet  of  the 
iJc/j*  vein,  lofle  or  deposit,  bearing  silver,  together  with  surface 
ground  300  feet  in  width,  for  the  eonvenient  working  thereof  as 
allowed  by  local  rules  and  customs  of  miners,  said  mineral  claim, 
vein,  lode  or  deposit  and  surface  ground  being  situate  in  Alpine 
Mining  District.  County  of  Lake  and  State  of  Colorado, 
as  more  particularly  set  forth  and  described  in  the  official 
field  notes  of  survey  thereof,  hereto  attached,  dated  February  10, 
A.  D  1888,  and  in  the  official  plat  of  said  survey,  now  posted 
conspicuously  upon  said  mining  claim  or  premises,  a  copy  of 
which  is  filed  herewith.  Deponent  further  states  that  the  facts 
relative  to  the  right  of  possession  of  himself  to  said  mining  claim, 
vein,  lode,  or  deposit  and  surface  ground  so  surveyed  and 
platted,  are  .substantially  as  follows,  to  wit:  The  B-  ar  lode  was 
discovered  on  or  about  W\g  fourth  day  of  .7m'.?/,  A.  I).  1885,  by  James 
A.  McPadden.  who  afterwards,  and  before  ih&  first  day  of  Auqust, 
A.D.  1885,  comfileted  a  location  of  the  .same  as  a  mining  claim  of 
the  length  and  width  aforesaid,  having  substantially  located  the 
same  and  otherwise  complied  with  all  locul  rules  and  regula- 
tions, the  laws  of  the  State  of  Colorado  and  of  the  United  .States 
relating  to  mining  claims. 

The  .said  discoverer  and  locator  conveyed  all  his  interest  in 
the  claim  to  John  McConibetiuA  Frank  M  Taylor,  who,  by  <1ivers 
intermediate  conveyances  transferred  the  same  to  applicant,  who 
thereupon  took  yws.session  and  is  the  sole  present  owner,  all  of 
which  will  more  fully  api)ear  by  reference  to  the  copy  of  the 
-original  record  of  location  and  the  abstract  of  title  herewith 


APPLICATION    FOR    PATENT.  259 

filed;  the  value  of  the  lahor  done  nnd  improvements  made  upon 
said  Bear  Ix)dc  Mining  Claim  by  tlie  upplioant  (and  his  grantors) 
being  equal  to  tlie  sum  of  five  hundred  dollars.  Said  improve- 
ments consist  of  discovery  shaft,  an  incline,  shaft  house,  a  drift 
nnd  one-third  interest  in  adit  (but  expressly  excepting  and  ex- 
cluding from  this  application  all  that  portion  of  the  ground  em- 
braced in  mining  claim  or  survey  designated  as  lot  No.  2ot>0  and 
the  claim  of  Neals  Mattson  on  the  Gottenburg  lode)  in  con- 
sideration of  which  facts,  and  in  conformity  with  the  pro- 
visions of  Ctianter  Six  of  Title  Thirty-two  of  the  Revised  Statutes 
of  the  United  States,  ap|ilication  "is  hereby  made  for  and  in 
behalf  of  said  Jesse  White  for  a  7)atent  from  the  United  States 
for  the  said  Bear  Lode  Mining  Claim,  vein,  lode  or  deposit  and 
tho  surface  ground  so  offlcially  surveyed  and  platted. 

Jesse  White. 

Subscribed  and  sworn  to  before  me  this  fifth  day  of  March, 
A.  D.  1888,  and  I  hereby  certify  that  I  consider  the  above  depo- 
nent a  credible  and  reliable  person,  and  the  foregoing  afiidavit, 
to  which  was  attached  the  field  notes  of  survey  of  the  Bear  Lode  . 
Mining  Claim,  was  read  and  examined  by  him  before  his  signa- 
ture was  athxed  thereto  and  the  oath  made  by  him. 

[SEAL.]  Daniel  Sayer,  Notary  Piiblic. 

Where  an  application  is  presented  in  the  Land  Office 
before  the  plat  and  notice  have  been  posted  on  the  claim  as 
required  by  R.  S.,  ?  2325,  such  application  has  been  held  void 
ah  initio.     9  L.  0.  114. 

This  applicatioo  M  is  attached  to  the  transcript  H. 
This  transcript  H  is  commonly  styled  "The  Approved  Field 
Notes." 

At  the  same  time  there  should  be  prepared  : 

N. — The  abstract  of  title. 

O. — The  proof  of  citizenship. 

P. — Proof  of  non-abandonment. 

Q. — The  publisher's  agreement. 

E. — The  publication  notice— which  with  those  already 
referred  to,  completes  the  first  set  of  papers,  to- wit : 

(X.)    ABSTRACT  OF  TITLE. 

STATE  OF  COLORADO,   i 
County  of  Z^Ae.  I 

I,  Edward  Dale,  Clerk  and  ex  officio 

Recorderof  said  County,  do  hereby  certify  that  the  foregoing  is 
a  true,  full  and  correct  abstract  of  the  title  to  the  Bear  Lode 
therein  described,  as  the  same  appears  of  record  in  said  office. 


260  APPLICATION   FOR   PATENT. 

and  shows  all  location  certificates,  deeds  or  other  instruments 
appearing  of  record  purporting  to  convey  or  afTect  the  same. 

Witness  my  hand  and  the  seal  of  said  County,  this  lith  day 
ofMarcfiA  D.  1888. 

[COUNTY  SEAL.]  EDWARD  DALE,  Recorder. 

It  should  contain  a  memorandum  of  the  location  certif- 
icate, including  any  amended  location  certificates,  and  the 
usual  memoranda  of  the  deeds  and  other  instruments  ap- 
pearing cf  record  in  his  ofiicc,  and  should  be  brought  up  to 
and  include  the  date  of  the  application. 

The  abstract  often  contains  a  copy  of  the  location  cer- 
tificate, and  in  such  case  the  recorder's  certificate  should  be 
A'aried  to  state  that  it  contains  a  true  copy  thereof;  but  the 
better  practice  is  to  mail  with  the  application  papers  a  certi- 
fied copy  of  the  location  certificate  (or  certificates  if  there  be 
more  than  one),  separately,  and  after  the  filing  of  the  "appli- 
cation papers"  but  during  the  period  of  publication  to  send 
the  abstract  proper,  which  in  such  case  will  contain  only 
the  memorandum  of  the  location  certificate  with  names, 
•dates,  etc.,  in  the  same  manner  as  the  memoranda  of  the 
iseparate  deeds.  This  precaution  is  to  make  the  abstract 
■certainly  include  the  date  of  the  filing  of  the  application. 

When  the  applicant  for  patent  is  the  original  locator 
himself,  (and  there  have  been  no  transfers  of  title),  he 
should  file  with  the  application  papers  a  certified  copy  of 
his  location  certificate,  and  during  the  period  of  publication 
as  before  advised,  should  forward  an  abstract  containing  a 
memoranduni  of  such  location  certificate  certified  as  follows : 

STATE  OF  COLORADO,    I 

County  of  Lake.  j '   '  ,        ,  ^   . 

I,  Edward  Dale,  Clerk  and  ex-omcio 
Recorder  f)f  said  County  do  hereby  certify  that  the  foregoing  is  a 
full  true  and  correct  abstract  of  the  title  to  the  Bear  Lode  there- 
in described,  as  the  same  appears  of  record  in  said  office,  and 
that  there  are  no  deeds  or  other  instruments  appearing  of  record 
purporting  to  convey  or  afi'ect  the  .same  except  the  certificate  of 
location  therein  referred  to. 

Witness  my  hand,  etc.,  as  above. 


APPLICATION  FOR  PATENT.  26  1 

The  abstract  sliould  show  title  in  the  applicant. 

Rule  32,  p.  214.  If  it  show  title  in  several  co-owners  all 
such  co-owners  should  Join  as  applicants.  If  it  show  that 
there  were  co-owuers  who  had  been  forfeited  out  for  non- 
performance of  annual  labor,  this  is  considered  equivalent 
to  an  abstract  showing  transfer  by  deed  from  them  to  the 
applicant.  A  break  in  the  chain  of  title  behind  a  re-loca- 
tion nsade  in  the  usual  form  to  take  up  abandoned  claims 
may  be  disregarded.— Gold  Dirt  Lode.  10  L.  O.  119. 
Where  names  of  co-tenants  are  inadvertently  omitted  in 
the  application  they  have  been  allowed  to  be  supplied  and 
the  patent  issued  to  all.— In  re  J.  Q.  S.  Lode  10  L.  0.  206 ; 
but  this  is  irregular. 

When  a  co-owner  for  any  cause  is  not  joined  he  may 
adverse.— 10  L.  O.  20G. 

(0.)    PROOF   OF   CITIZENSHIP. 

STATE  OF  COLOU.VDO,    I 
County  of  Lake.  I     ' 

Je.<>se  ^'71(76  being  first  duly  sworn  ac- 
cording to  law,  deposes  and  says  that  he  is  the  applicant  for 
patent  for  the  Bear  L(xlc  I^Iining  Clahii.  situate  in  Alpine  Mining 
District,  County  of  Dike,  State  of  Colorado*  ;    that  he  is  a  native 

l)orn  citizen  of  the  United  States,  born  in  the  County  of 

State  of  Sew  York,  in  tlic  year and  is  now  a  resident  of 

miver  Cliff,  State  of  Colorado. 

Jesse  While. 
Subscribed  and  sworn  to  before  me  this  Vllh  day  of  March, 

1S88.  „       .    „^ 

fSeal  1  Frank  Shnw, 

Notary  Public. 

When  the  ajiplicant  is  not  a  native  citizen,  the  form 
after  the*  will  proceed  : 

That  he  is  a  naturalized  citizen  of  the  United  States  :  took 
out  bis  final  naturalization  papers  in  the  Circuit  f^ourt  of  the 
United  Slates  at  Denver,  Colorado,  on  ih^  first  day  of  May.  1S80, 
and  is  now  a  resident  of  Kokomo,  State  of  Colorado. 

If  the  applicant  has  not  taken  out  his  final  papers,  it 
will  proceed  : 


262       APPLICATION  FOR  PATENT. 

That  he  declared  his  intention  of  becoming  a  citizen  of  the 
United  States  in  the  Circuit  Court  of  the  United  States  at  Denver, 
Colorado,  on  the  jiisi  day  of  May,  1880,  and  is  now  a  resident  of 
Cheyenne,  Temtory  of  Wyoming. 

If  the  applicant  claims  under  his  father's  naturalization, 
it  will  proceed  : 

That  he  is  a  naturalized  citizen  of  the  United  States,  horn  in 
the  Republic  of  Peru,  and  that  he  came  to  the  United  States  a 
minor,  under  the  age  of  21  years,  and  has  ever  since  resided  in 
the  United  States,  and  thathis  father  took  out  his  final  papers 
and  became  a  naturalized  citizen  of  the  United  States*  during 
the  minority  of  afliant,  whereby  affiant  became  a  naturalized 
citizen  under  the  terms  of  Section  217 i  of  the  Revised  Statutes 
of  the  United  States,  and  is  now  a  resident  of  Aspen,  County  of 
Fitkin,  State  of  Colorado. 

Or,  if  the  applicant  be  a  native  Mexican,  born  prior  to 
February  2,  1848,  it  will  proceed : 

"  That  he  is  a  citizen  of  the  United  States,  born  prior  to  the 
second  day  of  February,  A.  D.  1848,  in  that  part  of  the  Repub- 
lic of  Mexico  which  was  ceded  to  the  United  States  by  the  treaty 
of  that  date,  known  as  the  treaty  of  Guadaloupe  Hidalgo,  and 
that  he  elected  to  become  a  citizen  of  the  United  States  under 
said  treaty,  and  has  ever  since  resided  within  the  United  States 
of  America,  and  is  now  a  resident  of  Conejos,  County  of  Conejos, 
State  of  Colorado." 

Serving  in  the  Army  or  Navy  does  not  complete  citi- 
zenship of  itself.  Soldiers  must  comply  with  Section  2166 
and  Sailors  with  Section  2174  of  the  Eevised  Statutes. 

It  was  formerly  necessary  to  attach  a  copy  of  the  natu- 
ralization papers  to  the  afiidavit,  but  this  is  no  longer  re- 
quired.   Sickel  492.    3  L.  O.  68. 

Citizenship  of  Corporation. — A  corporation  must 
file  a  copy  of  its  charter  or  articles  of  association,  certified 
to  by  the  Secretary  of  State  of  Colorado,  whether  it  be  a 
Domestic  corporation  or  a  corporation  of  some  other  State 
uoing  business  in  this  State. 

*NoTE.  State  when  and  where  and  in  what  court,  in  com- 
pliance with  Rule  80,  page  223. 


APPLICATION    FOR    PATENT.  263 

"Where  there  are  several  applicants  each  makes 
his  owu  atlidavit  of  citizeuship. 

Affidavit,  where  made.— By  Act  of  April  26,  1882, 
the  affidavit  of  citizenship,  where  the  applicant  resides  out- 
side of  the  Land  District,  may  be  made  anywhere  in  the 
United  States,  before^  a)iy  Notary  or  Clerk  of  Court  of  Re- 
cord where  the  applicant  may  reside  or  happen  to  be  found. 

Proof  by  two  "Witnesses. — When  the  atlidavit  of  the 
applicant  cannot  be  procured  the  Land  office  will  allow 
proof  of  his  cftizensbip  by  the  affidavits  of  two  disinterested 
witnesses.     Etile  81,  p.  224. 

(P.)    PROOF  OF  NON-ABANDONMENT, 

By  circular  of  tlie  General  Land  Office  of  JIarch  24, 
1887,  it  was  ruled  that  the  Register  should  require  upon 
each  application  satisfactoiy  proof  of  compliance  with  the 
annual  labor  law.— K.  S.  ?  2324. 

The  circular  is  obscure  and  no  specific  form  to  apply  to 
all  cases  can  be  piTpared  from  it  but  the  following  form 
will  cover  all  the  ordinary  cases.  It  should  be  made  by 
the  applicant  or  his  agent  corroborated  by  two  disinterested 
witnesses. 

STATE  OF  COLORADO,    (  _. 
County  of  Lake  ( 

Before  me,  the  subscriber,  a  Xotary 
Public  in  and  for  said  County,  personally  appeared  je?.?e  White, 
who,  being  duly  sworn,  saith  that  he  is  the  applicant  for  patent 
upon  the  TJfi'tr  Lode  Mining  Claim  in  Alpine  Mining  District, 
Comity  of  Lake,  State  of  Colorado,  Survey  Lot  No  oSni ;  that  he 
is  the  "owner  of  said  claim  and  has  not  abandoned  the  same  and 
that  1*  he  has  performed  at  least  one  hundred  dollars  worth  of 

1*  Or,  that  he  resumed  work  on  the  2wd  day  of  January, 

A.  D.  1S8S,  with  the  bona  tide  intention  of  completing  one  hun- 
dred dollars  worth  of  labor  or  improvements  during  the  current 
year. 


264  APPLICATION    FOR   PATENT. 

labor  upon  said  claim  during  the  year  1887,  and  that  said  labor 
consisted  of  sin/cjn.o'^/tc  discovery  shaft  from  a  depth  often  to  a 
depth  of  twenty-two  feet- 
Jesse  White. 
Sworn  and  subscribed  before  me  this  2nd  day  of  March,  A . 
D.  18S8. 

Appleton  J.  Ide, 
[Seal.l  Notary  Public. 

STATE  OF  COLORADO,    I  „„ 
County  of  Lake  r''' 

Before  me,  the  subscriber,  personally 
appeared  John  MeCombe  and  Charles  T  Limbert/,  who  being 
duly  sworn  say  that  they  reside  in  LeadviUe,  in  said  County,  are 
citizens  of  the  United  States,  and  are  familiar  with  the  jBeto-Lode 
Survey  Lot  No.  55.55  described  in  the  foregoing  affidavit  of  Jcs.se 
White;  that  they  have  no  interest  in  the  application  for  patent 
upon  said  lode,  and  are  familiar  with  the  facts  stated  in  said 
affidavit,  and  know  of  their  own  knowledge  that  the  work  there- 
in mentioned  Avas  done  as  therein  stated. 

John  McCombe,       I    wifnesseo 
Chas.  T.  Limberg,  s    witnesses. 

Subscribed  and  sworn  to  before  me  this  2nd  day  of  March, 
A.  D.  188.S,  and  I  hereby  certify  that  the  foregoing  affidavit  was 
read  to  (or  by)  the  above  named  John  MoCombe  and  Chas.  T. 
iim'jcrg' previous  to  their  names  being  subscribed  thereto,  and 
that  deponents  are  credible  witnesses  to  whom  full  faith  and 
credit  should  be  given. 

Appleton  J.  Ide, 

[Seal.]  Notary  Public. 

(Q.)    PUBLISHERS   C0NTRA.CT. 

We,  the  undersigned.  Publishers  and  Proprietors  of  the 
LeadviUe  Herald- Democrat,  a  weekly  newspaper,  published 
in  LeadviUe.  Lake  County,  State  of  Colorado,  liercby  agree  to 
publish  a  notice  dated  U.  S.  Land  Office,  LeadviUe,  Colo.,  March 
1, 1888,  required  by  act  of  Congress,  ai>proved  May  10th,  1872,  of 
the  intention  of  Je.ss«  White  to  apply  for  a  patent  for  his  claim 
on  XhaBear  Lode,  situated  in  Alpine  Mining  District,  County  of 
Lake,  State  aforesaid,  and  to  hold  the  said  Jesse  White  alone 
responsible  for  the  amount  of  our  t)i]l  for  publishing  the  same 

And  it  is  hereby  expressly  stipulated  &i\<^  agreed,  that  no 
claim  shall  be  made  against  the  government  of  the  United  States,^ 
or  its  officers  or  agents,  for  such  publication. 

Witness  our  hands  this  fourth  day  of  March,  A.  D.  1888. 

C.  C.  Davis  &  Co. 

Ill  what  Newspaper. —  he  notice  must  be  published 
in  a  newspaper  to  be  by  the  Register  designated  as  published 
nearest  to  the  claim.     (E.  S.  ^  2325..)     When  there  are  two 


APPLICATION    FOR    PATENT.  265 

or  more  iu  the  nearest  town  cither  may  be  designated. 
Cameron  v.  Seaman,  13  M.  R.  584;  10  L.  0.:37(i.  And  the  practice 
of  tlie  Register,  where  two  or  more  local  papers  in  the  same 
town  are  published,  is  to  designate  that  one  which  the  at- 
torney may  suggest.  The  distance  is  to  be  calculated  not 
by  an  air  line,  but  by  the  most  usually  traveled  route.  The 
notice  must  be  continued  iu  the  same  paper  and  cannot  be 
shifted  from  the  daily  to  the  weekly  edition.     3  L.  0.  18. 

What  Conslitutes  a  Newspaper. — It  must  be  a  i"ep- 
utable  newspaper  of  general  circulation.  10  L.  0.  360;  376. 
The  Register  has  a  discretion  in  deciding  what  constitutes 
such  a  newspaper.    8  L.  0.  156 :  3  L.  0.  36. 

Manner  and  Period  of  Publication.— The  notice 
E  must  be  published  for  61  days  iu  a  daily,  or  10  consecu- 
tive times  in  a  weekly  paper,  and  while  the  notice  is  going 
througli  its  newspaper  publication,  it  also  stands  posted  on 
the  claim,  and  tacked  to  the  bulletin  of  the  Land  Office. 
Each  of  these  methods  of  publication  is  mandatory  and 
essential. 

(R.)  PUBLICATIOX  NOTICE. 

This  is  verbatim  the  same  as  K,  and  amounts  to  a 
fourth  copy  of  K  except  that  it  is  not  signed  by  the  appli- 
cant but  is  forwarded  in  blank  to  the  land  office  where  it 
receives  the  application  number,  is  signed  by  the  Register 
and  returned  by  him  to  the  attorney  for  claimant  or  direct 
to  the  printer. 

It  should  contain  at  the  foot  a  memorandum  of  the  date 
of  the  first  and  last  publication. 

First  Set  or  "Application"  Papers.— The  above 
mentioned  papers,  constituting  the  following  list,  to-wit : 


266  APPLICATION    FOR    PATENT. 

F. — The  final  plat — one  copy, 

H. — The  approved  field  notes, 

K. — The  copy  intended  for  posting  in  land  office, 

K. — Second  copy  with  L  proof  of  posting  attached, 

M. — Application  for  patent, 

N. — Abstract  of  title,     (See  p.  259.) 

O. — Proof  of  citizenship, 

P. — Proof  of  non-abandonment, 

Q. — Publisher's  agree  oient, 

E. — Publication  notice — which  complete  the  first  set  of 
papers  commonly  called  the  "application  papers,"  are  all 
forwarded  at  one  time  by  the  attorney  to  the  local  land 
office. 

Upon  receipt  of  the  application  papers,  accompanied  by 
the  filing  fee  of  ten  dollars,  the  Eegister  gives  the  papers  an 
application  number,  makes  a  record  of  the  application  in 
the  nature  of  an  index,  attests  the  posting  of  the  notice  K  in 
his  office,  affixing  the  date,  and  returns  to  the  attorney  for 
claimant  the  notice  for  publication  E  headed  with  the  appli- 
cation number,  or  sends  it  direct  to  the  proper  paper  for 
publication.  The  return  of  the  publication  notice  to  the 
attorney  or  paper  is  an  implied  approval  of  the  publisher's 
contract  and  a  sufficient  designation  of  that  paper. 

EECAPITULATION. 

It'may  be  convenient  to  review  the  proceedings  at  this 
point. 

The  papers  A  to  I,  inclusive,  have  performed  their 
office. 

A,  the  request  for  survey ;  C,  the  preliminary  plat ;  D, 
the  field  notes,  and  F,  the  final  plat,  remain  with  the  Sur- 
veyor General. 


APPLICATION    FOR    PATENT.  267 

B,  the  order  for  survey,  remains  in  the  hands  of  the 
deputy,  being  his  voucher  against  the  applicant  for  work 
done  under  it. 

E,  G,  and  I  are  mere  certificates  endorsed  on  other  pa- 
pers. 

1  he  transcript  H  (the  approved  field  notes),  has  been 
attached  to  the  application  M,  and  both  mailed  to  the  local 
laud  oflice. 

One  copy  of  the  plat  F,  has  been  forwarded  by  the  Sur- 
veyor General  to  the  local  laud  office  to  be  kept  on  file ; 
one  copy  has  been  posted  on  the  claim,  and  one  copy  for- 
warded to  tte  local  land  office  as  one  of  the  application 
papers. 

One  of  the  notices  K,  has  been  posted  on  the  claim; 
one  has  been  attached  to  the  proof  of  posting;  one  has  been 
posted  in  the  land  office,  and  one,  R,  remains  to  be  pub- 
lished or  is  beiug  published. 

•L,  the  prisoi  of  posting;  M,  the  application;  P,  the  proof 
of  non-abandonment,  and  Q,  the  publisher's  agreement,  have 
been  filed  in  the  land  office. 

11,  the  publication  notice,  has  been  forwarded  to  the 
designated  newspaper. 

N,  the  abstract,and  O,  the  proof  of  citizenship,  have  been 
filed,  or  if  not,  may  be  filed  at  any  time  pending  the  pub- 
lication. 

The  Second  Set,  or  "Pinal  Entry"  Papers,  which 
remain  to  be  filed  after  the  publicitiou  is  complete,  con- 
sist of — 

S.  Proof  of  continuous  posting. 

T.  Proof  of  publication. 

U.  Proof  of  sums  paid. 

v.  Application  to  purchase,  to-wit : 


268  APPLICATION    FOR    PATENT. 

SECOND  SET  OR  FINAL  ENTRY  PAPERS. 

When  the  period  of  publication  is  complete,  proof  of  the 
notice  having  remained  on  the  claim  and  of  the  publica- 
tion are  made  as  follows  : 

(S.)   rROOF    THAT    PLAT    AND    NOTICE    REMAINED   POSTED  ON  CLAIM 
DURING  TIME  OF    PUBLICATION. 

STATE  OF  COLORADO,   \  „„ 
County  of  Lake.         }""■ 

Jesse  White  being  lirst  duly  sworn  ac- 
cording to  law,  deposes  and  says,  that  he  is  the  claimant  of  the 
Bear  Lode  Mining  Claim.  Alpine  Mining  District,  Lake  County, 
State  of  Colorado,  the  official  plat  of  which  premises  together 
with  the  notice  of  his  intention  to  apply  for  a  patent  therefor 
was  posted  thereon,  on  the  secwid  day  of  March,  A.  D.  1888  as 
fully  set  forth  and  described  in  the  affidavit  of  Emilio  D.  DeSoto 
a.nd  Fred  O.  Keeney  dated  the  second  day  of  March,  A.  D.  1888, 
which  aflBdavit  was  duly  filed  in  the  office  of  the  Register,  at 
Leadville  in  this  case  ;  and  that  the  plat  and  notice  so  mentioned 
and  described,  remained  continuously  and  conspicuously  posted 
upon  said  mining  claim  from  the  second  day  of  March,  A.  J '.  1888 
until  and  including  the  fourth  day  of  May.  A.  D.  1888,  including 
the  sixty-three  days'  period  during  which  notice  of  said  aiiplica- 
tion  for  patent  was  published  in  the  newspaper. 

Jesse  White. 

Subscrited  and  sworn  to  before  me,  this  lOth  day  of  May, 
A.  D.  1888,  and  I  hereby  certify  that  the  foregoing  affidavit  was 
read  to  the  said  Jesse' White  previous  to  his  name  being  sub- 
scribed thereto.  ,^        ^   ,^  re.     1  T 

Appletan  J.  Jde,  [Seal.] 

Notary  Public. 


This  affida-vit  of  continuous  posting  must  be  made  by  a 
paity  to  the  application  or  by  the  agent  when  the  entire 
application  is  made  under  a  power. — 1  L.  O.  178 ;  6  L.  O. 
92. 


APPLICATION    FOR   PATENT. 


269 


(T.)   CERTIFICATE  OF  PUBLICATION. 


(Copy  of 
publication  notice 

cut  from  paper 
ami  pasted  here.) 


The  publisher's  re- 
ceipted bill  is  commonly 
attached  to  this  blank . 


1,0  0.  Davis,  do  certify  that  I  am  one  of 
the  proprietors  of  the  LeadvUle  Jle raid- Dem- 
ocrat, a  newspaper  published  in  LeadvUle, 
in  tin;  County  of  i,fjA:e  and  State  of  Colorado, 
and  that  the  "annexed  notice  was  published  in 
said  ijapcr  once  each  and  every  week  for  ten 
consecutive  weeks,  the  tirst  publication  beine: 
on  the  tnd  day  of  March,  A.  D.  1«?H  and  the 
last  putilication  being  on  the  Ath  day  of  May, 
A.  D.  1S88. 

0.  G.  Davis. 

Subscribed  and  sworn  to  before  me 
this  \Oth  day  of  May  A.  D.  18*8. 

Chas.  H.  Roxe, 
[Seal.]  Notary  Public. 


Together  with  these  proofs  of  publication  and  posting 
the  claimant  forwards,  under  one  of  the  instructions  of  the 
Department,  the  following : 


(U.)      PROOF  OF  SUMS  PAID. 

STATE  OF  COLORADO,  1  _ 

Counl\  of  Lake.         j""' 

Jfsse  "tv/ii7e  having  been  first  duly  sworn  according  to  law, 
depo>es  and  savs  that  he  is  a  citizen  of  the  United  States,  over 
the  age  of  twenty-one  years  ;  that  he  is  the  applicant  for  patent 
to  l')iiO  feet  upon  the  Bcur  Lode,  in  Alpine  Mining Diftriet,  Lake 
County,  Colorado;  tliat  in  the  prosecution  of  such  application  he 
has  paid  the  following  sums  of  money,  viz  : 
For  office  work  in  the  Surveyor-General's  oflBce, 
To  Wm.  Byrd  Page,  Deputy  Sur\-eyor,  for  surveying  and 

platting 

To  Register  and  Receiver,  for  filing  application  in  Land 

Office, 

To  C.  C  Davis  A  Co..  publishers  of  the  LeadviUe  Herald- 

Democrat,  for  publication  of  notice  of  application. 
To  the  Receiver  ot  the  local  Land  Office,  for  land, 


30 
50 
10 


20 
40 


.Tesse  White. 


S150 


Subscribed  and  sworn  to  before  me  this  10th  day  of  May, 
1888.  Appleton  J.  Ide, 

[Seal.]  Notary  Tublic. 


270  APPLICATION   FOR    PATENT. 

These  are  the  official  costs  only;  it  does  not  include  At- 
torney's fees,  Notary's  charges,  nor  cost  of  Abstract.  The 
total  expense  of  patenting  one  lode,  without  mill  site,  varies 
from  $140  to  5=250. 

The  filing  of  this  paper,  U,  completes  thepre-requisites 
of  entry  and  payment  except  the  formal  application  to  pur- 
chase  "V"  and  the  Eegister's  proofs  "W"  and  "X," 

(V.)    APPLICATION  TO  PURCHASE. 

To  the  Register  and  Receiver 

United  Stales  Land  Office 
at  Leadville,  Col'irado. 
The  undersigned,  claimant  under  the  provisions  of  the  Re- 
vised Statutes  of  the  United  States,  Chapter  Six,  Title  Thirty-two 
and  legislation  supplemental  thereto,  hercbj'  applies  to  purchase 
that  Mining  Claim  known  as  the  Bear  Lode,  located  in  the  West 
Half  of  Section  22,  in  Township  Xo.  11  S.,  Range  No.  SI,  West  of 
the  ('ith  principal  meridian,  designated  us  Lot  No.  55'i5,  said  Lot 
No.  5555  extending  1500  feet  in  length  along  stid  Bear  vein  or 
lode,  but  expressly  excepting  and  excluding  irom  this  application 
all  that  portion  of  the  ground  embraced  in  mi  ing  claim  or  sur- 
vey designated  as  Lot  No.  25^0,  the  Carnarvon  Lode,  and  the 
claim  of  Neals  Mattson  on  the  Gottenburg  Lode,  and  also  all  that 
portion  of  any  vein  or  lode  the  top  or  apex  of  which  lies  inside  of 
said  excluded  ground;  said  Lode  Mining  claim  embracing  7.916 
acres  in  the  Alpine  Mining  District,  in  the  County  of  Lake  and 
State  of  Colorado,  as  shown  by  the  survey  thereof,  and  hereby 
agree  to  pay  therefor /or/y  dollars,  being  the  legal  price  thereof. 
Dated  Leadville,  May  10,  1888.  Jesse  White. 

I,  Thomas  W.  Burchinel,  Register  of  the  Land  Office  at 
Leadville.  Colorado,  do  hereby  certify  that  the  aforesaid  Mining 
Claim  or  Lot  No.  5555  as  applied  for  above,  is  subject  to  entry  by 
the  above-named  applicant;  the  area  of  said  Lode  Mining  claim 
being  7.916  acres,  and  the  legal  price  thereof  forty  dollars. 

Thos.  W.  Burchinel, 

May  12, 1888  Register. 

"V"  does  not  need  to  be  verified. 

Kegister's  Proof  Completes  Application. — Upon 
receipt  of  the  final  entry  papers  (S-V)  accompanied  by  the 
purchase  money  (all  other  papers  being  regular)  the  Eegis- 
ter  makes  his  certificate  that  tlie  notice  K  remained  posted 


APPLICATION    FOR    PATENT.  271 

on  his  Imlletin  during  the  period  that  its  duplicates  were 
being  posted  on  tlic  claim  and  published  and  makes  his 
final  certificate  of  entry. 


(W.)    register's   ceetipicate  of  posting  notice  foe 

SIXTY   DAYS. 

[AUacTied  to  Bulletin  copy  of  K.] 

UNITED  STATES  LAND  OFFICE, 
At  Leadville,  Colorado, 

May  12.  1888. 

I  hereby  certify  that  the  official  plat  of  the  Bear  lode,  desi|j- 
nated  by  the  Surveyor  General  as  lot  No.  5555,  was  filed  in  this 
office  on  the  Xxt  day  of  March,  A.  D.  1888.  and  that  a  notice, 
of  which  the  attached  notice  is  a  copy,  of  the  intention  of  Jesse 
White  to  apv>lv  for  a  patniit  for  the  miiiinp;  claim  or  premises  em- 
braced bv  said  plat,  and  descri'  ed  in  the  tield-notes  of  survey 
thereof  tiled  in  sain  application,  was  posted  conspicuously  in  this 
oftice  on  the  'Ind  dav  of  March,  A.  D.  1888,  and  remained  so  post- 
ed until  the  4/;j  day  of  it/a^,  IS'^H,  being  the  full  period  of  sixty 
consecniive  days  during  the  period  of  put)lieation  as  required  by 
law  ;  and  that  said  plat  remained  in  this  office  during  that  time^ 
subject  to  examination,  and  that  no  adverse  claim  thereto  has 
been  tiled. 

Thox.  W.Burchrnel, 

Register. 

It  is  important  that  this  Bulletin  Notice,  K,  sliould  have 
been  promptly  posted.  The  Land  Office  hold  that  it  is  es- 
sential that  the  two  notices,  to-wit :  by  newspaper  and  by 
the  bulletin  should  be  concurrent,  and  in  a  case  where 
the  HuUetin  was  not  posted  till  the  3d  day  of  advertise- 
ment they  allowed  an  adverse  on  the  63d  day,  holding  that 
the  double  and  cotemporaneons  publication  was  not  until 
such  day  complete.  The  Bulletin  need  not  be  posted  tiS 
days,  but  the  newspaper  notice  does  not  begin  io  run  until  the 
Bulletin  is  posted.     In  re  Great  Western  Lode,  14  L.  0.  27. 


272  APPLICATION  FOR  PATENT. 

(X.)  register's  final  certificate  op  entry. 

Mineral  Entry  No.  2,000.  )     UNITED  STATES  LAND  OFFICE 
Lot  No.  5555.  i  At  Leadvillt,  Colorado, 

May  12,  1888. 

It  is  hereby  certified  that  in  pursuance  of  the  provisions  of 

the  Revised  Statutes  of  the  United  States,   Chapter  Six,   Title 

Thirty-two   and  legislation  supplemental  thereto,  Jesse  White, 

Avhose  post-office  address  is  Silver  Cliff,    Colorado,  on  this  day 


6th  principal  meridian,  designs 
5555  extending  1500  feet  in  length  along  said  Bear  vein  or  lode, 
expressly  excepting  *1  and  excluding  from  said  purchase  all  that 
portion  of  the  ground  embraced  in  mining  claim  or  survey  desig- 
nated as  Lot  No.  2560,  Carnarvon  Lode  ;  aUio  the  claim  of  Neals 
Mattson,  on  the  Gotlenburg  Lode,  and  also  all  that  portion  of  any 
vein  or  lode  the  top  or  apex  of  which  lies  inside  of  said  excluded 
ground  ;  said  lode  mining  claim,  as  entered,  embracing  7.916 
acres  in  the  Alpine  Mining  District  in  the  county  of  Lake  and 
State  of  Colorado,  as  shown  by  the  plat  and  field-notes  of  survey 
thereof,  for  which  the  said  party  first  above  named  this  day  made 
payment  to  the  Receiver  in  full,  amounting  to  the  sum  of  forty 
aollars. 

Now,  therefore,  be  it  known  that  upon  the  presentation  of  this 
Certificate  to  the  Commissioner  of  the  General  Land  Office,  to- 
gether with  the  plat  and  field-notes  of  survey  of  said  claim  and 
the  proofs  required  by  law,  a  patent  shall  issue  thereupon  to  the 
said  Jesse  White  if  all  be  found  regular. 

Thomas  W.  Burchinel, 

Register. 

The  Eeceiver  files  his,  the  original  Eeceiver's  Receipt, 
with  the  papers  and  delivers  or  sends  a  duplicate  to  the 
claimant,  and  all  the  preliminary  proceedings  are  now  com- 
plete. 

Receiver's  Receipt. — This  Receiver's  Receipt  should 
be  kept  by  the  claimant  until  notice  from  the  local  Land 


*NoTE.— Excluded  Surveys.— After  the  receipt  of  this  circu- 
lar at  the  local  land  office,  all  applications  for  mineral  patents, 
applications  to  purchase.  Register's  final  certificates  of  entry  and 
Receiver's  receipts  must  not  only  describe  the  ground  claimed, 
but  must  state  specifically  what  conflict  or  conflicts  with  other 
surveys,  lots  or  claims  are  excluded,  giving  the  number  of  each 
conflicting  survey  or  lot.  The  published  and  posted  notices  must 
contain  the  same  information.  Circular  qf  Dec.  i  ,l8Si.  11  L.  O.  2%. 


APPLICATION    P'OR   PATENT.  273 

Office  that  Patent  has  arrived  at  sucli  local  Land  OfSce,  as 
its  surrender  is  required  l)efore  the  Patent  is  delivered.  If 
mislaid,  proof  of  loss  must  be  made 

(Y.)    AFFIDAVIT  OF  LOST  RECEIVER'S  RECEIPT. 

STATE  OF  COLOUADO,  t„ 
County  of  Oilpin.         I '  "" 

lu  the  (Jentral  City  Loud  District,  Colorado. 
Before  me  the  subscriber,  Register  of  said  Land  Ofl'ico,  per- 
sonally appeared  John  liest,  who  bein>,'  duly  sworn  snith  that  he 
is  the  *applieant  for  patent  on  the  Brelau  Lode  Mining  Claim 
Survey,  Lot  No.  .iOOO  in  Grcdory  Mining  District,  County  of  Gd- 
pin,  State  of  Colorado,  and  the  same  person  who  as  sneh  ap- 
plicant made  entry  of  said  survey  lot  in  the  said  i^and  Otlice  on 
•or  about  the  yi«<  day  ol' Juiw,  X.  1).  1887.  i  hat  on  the  date  of 
said  entry  he  received  the  Duplicate  Receiver's  Receipt  therefor. 
That  said  l)\iplicatc  Receiver's  Receipt  is  lost  or  mislaid.  That 
■deponent  has  made  diligent  search  among  his  papers  and  cannot 
find  the  same,  and  cannot  therefore  surrender  the  same.  That 
he  never  assigned  or  purported  to  assign  said  Receiver's  Receipt 
and  still  remains  the  owner  and  in  possession  of  the  land  therein 
described  ami  is  the  party  entitled  to  receive  the  patent  therefor. 
♦Wherefore  affiant  asks  that  the  patent  to  said  survey  lot  be 
delivered  to  him  without  the  surrender  of  said  Receiver's  Re- 
ceipt upon  this  his  affidavit  of  loss. 

John  Best. 

Sworn  and  subscribed  before  me  thiseigTUh  day  of  January 
A.  D.  1S88. 

Richard  Harvey,  Register. 

If  the  title  has  been  transferred  insert  between  the  ••■  * 

"Owner  by  purchase  of  the  Jirelm  Lode,  etc.,  (description) 
That  he  pureha.sed  the  same  since  the  same  was  entered  for 
patent  by  deed  from  the  party  who  made  the  entry.  That  he 
never  received  the  Duplicate  Receiver's  receipt  from  his  vendor 
and  does  not  know  where  the  same  can  be  found.  That  he  has 
made  diligent  inipiin,-  of  ihe  attorney  and  surveyor  employed  in 
the  ap|«lication  for  patent  to  said  lode,  who  declare  that  they 
never  had  the  same  in  their  possession  and  that  the  whereabouts 
of  affiant's  vendor  are  unknown  to  affiant''.    Wherefore,  etc. 

After  Entry. — All  proceedings  after  entry  are  minis- 
terial. The  pai)ers  in  the  local  Land  Office,  except  the  copy 
of  Plat  F,  furnished  by  the  Surveyor  General,  are  for- 
warded to  the  General  Land  Office  at  Washingtou,  and  the 
Patent  issues  in  due   course  usually  arriving  within  two 


274  APPLICATION    FOR   PATENT. 

years,  the  Department  being  behind  in  its  office  work  ; 
but  this  is  upou  the  supposition  that  all  the  preliminary 
steps  have  been  regular,  and  that  the  land  was  in  fact 
open  to  entry — if  material  errors  or  defects  are  discovered 
after  the  Eeceiver's  Receipt  issues  it  may  be,  and  often 
is,  recalled  and  cancelled,  and  if  land  entered  as  agri- 
cultural is  shown  to  be  mineral  at  any  time  before  patent 
issues,  the  same  result  follows. — Scogin  v.  Culver,  7.  L.  0.  23. 

Corrections  and  Additional  I'roofs. — The  entire 
series  of  papers  are  reviewed  at  Washington  and  if  irreg- 
ularities, such  as  errors  in  survey,  insufficient  proof  of  im- 
provements, errors  in  affidavits,  etc.,  are  discovered,  the 
local  Land  Office  is  notified  from  the  General  Land  Office, 
and  (unless  the  mistake  is  a  fatal  one)  the  claimant  or  his 
attorney  is,  by  letter  from  the  local  Land  Office,  notified  to 
supply  the  defect  by  further  affidavit  or  certificate,  as  the 
case  may  be. 

Government  Price  $5  per  acre. — T  he  Application 
papers  (p.  265)  are  accompanied  by  the  money  to  be  paid  for 
the  land,  being  $5  for  each  acre  or  fractional  part  of  an  acre 
of  the  surface  ground.  The  extreme  limit  of  claim  in  Colo- 
rado being  1.300  feet  long  by  300  feet  broad,  such  claim  con- 
tains 10  and  33-100  acres;  the  fractional  acre  being  paid  for 
as  one  acre,  makes  the  claim  equivalent  to  11  acres.  The 
amount  paid  will  therefore  vary  between  $5  and  .$55  for  a 
single  Lode  location  with  no  mill  site.  The  price  of  placer 
ground  is  $2.50  per  acre. 

Acreage  of  Lode  Claims. — In  computing  this  acre- 
age, all  interfering  surveys  which  have  been  deducted,  are 
excluded.  The  payment  is  based  on  the  amount  of  clear 
surface  ground  covered  by  the  survey,  all  prior  official  sur- 
veys being  excejjted. 


APPLICATION    FOR    PATENT.  275 

Claim  1500  x  300  feet  contains  10.33  acres. 
"       1.500  X  150      "        "  5.1«     " 

"       3000  X  50        "         "  3.44     " 

"       1400  X  50        "         "  1.60     " 

"       1600  X  50        "         "  1.83     " 

Affidavits.— AVhere  Made.— All  affidavits  made  in 
support  of  the  application  must  be  made  within  the  Land 
District.  An  exception  to  this  is  the  publisher's  affidavit 
(T)  where  the  paper  "nearest  the  claim"  happens  to  be  a, 
newspaper  in  another  Land  District.  Another  exception  is 
the  affidavit  of  citizenship.  Adverse  claims  may  be  verified 
in  certain  cases  beyond  the  Land  District.    See  p.  295. 

Before  What  Officer  —They  may  be  made  before  a 
Notary  Public  or  any  officer  authorized  to  administer  oaths . 
Among  such  officers  are  the  Eegister  and  Receiver  of  the 
proper  district.  .  Where  allowed  outside  the  district  they 
should  be  taken  before  a  Xotary  or'the  Clerk  of  a  court  of 
record.  In  all  cases  seal  should  be  attached,  and  the  Notary 
should  add  after  his  signature,  "My  commission  expires 
Feb.  29,  ]892."     A  ts  of  18S7,  i).  391. 

Affidavits,  wlien  tliere  are  Several  Applicants. 

— Where  the  application  is  joint,  any  one  co-owner  may 
make  all  the  affidavitareiiuired,  on  behalf  of  his  co-owners 
as  well  as  on  his  own  behalf,  <>xcept  the  affidavits  of  citizen- 
ship.   See  p.  263. 

Joint  Owners. — When  a  claim  is  owned  in  common, 
it  is  extremely  convenient  and  especially  advisable  where 
it  is  owned  in  unequal  interests,  to  have  a  quit-claim  exe- 
cuted by  the  others  to  one  of  their  number,  placing  the 
title,  for  the  time  being,  in  his  name,  the  grantors  securing 
themselves  by  title  bond  or  otherwise. 

Application  by  Agent.  Amendniont  to  It.  S.  i,  ilJi.S.— ***Where 
the  claimant  for  a  patent  is  not  a  resident  of  or  within  the  land 
district  wlierein  the  vein,  lode,  ledge,  or  deposit  sought  to  be  pat- 


276  APPLICATION,  FOR    PATENT. 

entcd  is  located,  the  application  for  patent  and  the  affidavits  re- 
quired to  be  made  in  this  section  by  the  claimant  for  such  patent 
maybe  made  by  his,  her,  or  its  authorized  agent,  where  said 
agent  is  convers'ant  witli  the  facts  sought  to  be  established  by 
said  affidavits  :    ***    A.  0.  Jan.  22, 1880. 

It  does  not  seem  that  under  the  above  aet  a  resident 
owner  can  apply  at  all  by  agent — unless  at  least  temporarily 
absent.  7  L.  O.  20.  And  the  fact  of  absence  should  be  re- 
cited in  the  power  of  attorney.  In  other  words  he  cannot 
delegate  the  power,  while  ho  is  present,  by  mere  caprice 
or  desire  to  avoid  personal  attention  to  the  matter. 

Where  an  application  is  by  agency  there  must  be  a 
written  power  o'f  attorney,  which  is  recorded,  and  a  cei'tified 
copy  is  filed  in  the  land  office  either  separately  or  attached 
to  the  abstract.  In  the  lattei  case  it  should  be  separately 
certified. 

(Z.)    FORM  OP  POWER  OF  ATTORNEY. 

Know  all  Men  by  these  Presents,  That  I,  Henry  E  Loane, 
of  Bal  imore.  State  of  Micryhmd,  a  citizen  of  the  United  States,  do 
hereby  constitute  and  appoint  Benjamin  B.  Lawrence,  of  Idaho 
Sx>rinijs,  County  of  Clear  Crtek,  State  of  Coloi-ado,  my  Attorney 
in  Fact,  for  me,  and  in  my  name,  to  make  application  for  patent 
of  the  United  States,  in  the  proper  Land  Otflce,  upon  the  Horrid 
Drayo  >  Lode  Mining  (Uaim,  1,500  feet  in  length  by  150  feet  in 
width,  situate  on  KcpuUican  Mountain,  in  (Tri/^iZ/i  Mining  District, 
County  of  Clear  Creek.  State  of  Colorado,  find  to  make,  or  cause  to 
be  made,  any  and  all  surveys,  relocations,  affidavits,  and  all 
necessary  papers  which  may  be  required  in  the  prosecution  of 
such  api)licution,  or  to  perfect  or  protect  the  title  thereto,  and  to 
do  all  acts  and  things  in  and  about  the  premises  which  I  myself, 
if  present,  could  do,  until  patent  is  finally  delivered.  Also  in 
case  of  Adverse  Claim,  1  authorize  him  to  employ  counsel  and 
take  all  measures  necessary  to  defend  against  said  Adverse  ('laim 
or  suit  in  support  thereof,  either  in  the  Land  Office  or  in  judicial 
proceedings,  and  in  such  judicial  proceedings,  to  execute  any 
bonds  or  other  paj)ers,  and  verify  all  proceedings,  to  and  includ- 
ing Appeal  or  Writ  f)f  Error. 

Witness  my  hand  and  seal,  ihis  first  day  of  July,  A.  D.  1888. 

Henry  E.  Loane.       [Seal.] 

Acknowledge  according  to  form  on  page  146  and  record, 
ut  mpra. 


APPLICATION    FOR    PATENT.  277 

The  Deputy  Surveyor  cannot  accept  such  power  nor 
act  directly  or  indirectly  as  agent.     Eide  80,  p.  225. 

Ill  each  affidavit  signed  by  agent  should  be  in- 
serted, by  wny  of  precaution,  the  following  clause: 

"Affiant  further  saith  that  the  said  claimant  is  not  a  resi- 
dent of  the  Land  District  in  which  said  claim  is  situate,  but 
resides  at  Tallahawe,  State  o{  Florida,  and  tliat  affiant  is  the  duly 
authorized  agent  of  said  claimant,  and  is  'conversant  with  the 
facts  sought  to  be  established  by  said  affidavit.'  " 

Where  a  Corr.oration  applies  all  papers  are  signed 
by  the  President,  or  other  officer  designated  as  stated  in  the 
next  paragraph  :  but  more  usually,  (and  advisably)  it  exe- 
cutes the  form  "Z"  to  some  resident  person  as  agent.  See 
p.  262. 

Where  it  does  not  adopt  the  latter  plan  the  Land  OfHce 
practice  requires  proof  that  the  officer  purporting  to  act  for 
the  company  was  authorized  to  make  the  application.  Such 
proof  may  consist  of  a  copy  of  the  resolution  of  the  Board 
of  Directors  instructing  some  designated  officer  to  apply  for 
Patent  to  the  claim  or  claims  mentioned,  certified  by  the 
secretary  under  the  corporate  seal. 

Mill  .*iite  Application. — Where  a  millsite  is  applied 
for  separately  it  must  be  upon  land  occupied  by  mill  or  re- 
duction works  (p.  129).  In  such  case  the  forms  herein 
given  are  sufficient,  changing  the  word  lode  to  mill  site, 
and  adding  the  two  forms  next  following.  The  price  per 
acre  is  also  the  same  {p.  128).  Applications  for  mill  sites 
alone  are  rare,  they  being  usually  applied  for  in  connection 
with  a  lode. 

(AA)  NON-MINERAf,  AFFIDAVIT. 

STATE  OF  COLORADO,      ^ 
County  or  Clear  Creek.  \  ""-• 

Frank  J.  Marshall,  and  Andreir  F. 
Curtis,  each  of  lawful  age  and  residents  of  6Vor^cto!Wi,  in  said 
County,  being  first  duly  sworn,  each  for  himself  and  not  one  for 
the  other,  saith  :    That  he  is  a  citizen  of  the  United  States ;  that 


278  APPLICATION    FOR    PATENT. 

he  is  well  acquainted  with  the  Annie  mill  site  claim  of  James 
Boyd,  situate  in  Qu£ens  Mining  District,  in  said  County,  upon 
which  said  Jamen  Boyd  has  applied  for  patent  of  the  United 
States,  and  knows  the"  character  of  s-aid  described  land,  having 
frequently  been  actually  upon  the  same  ;  that  his  knowledge  of 
said  laiidis  such  as  to  enable  him  to  testify  understandingly 
with  regard  thereto  ;  that  there  is  not  to  his  knowledge  within 
the  limits  thereof,  any  vein  or  lode  of  quartz  or  other  rock  in 
place,  bearing  gold,  silver,  cinnabar,  lead,  tin  or  copper,  or  any 
placer,  cement,  or  other  valuable  mineral  deposits,  or  any  deposit 
of  coal ;  that  no  portion  of  .said  land  is  claimed  for  mining  pur- 
pose -  under  the  local  customs  or  rules  of  miners  or  otherwise  ; 
that  BO  portion  of  .said  land  is  worked  for  minerals  during  any 
part  of  the  year  by  any  person  or  persons  ;  that  said  land  is  es.sen- 
tially  non-mineral  land,  and  'hat  he  has  no  interest  whatever  in 
said  claim  or  in  said  application  for  patent. 

Fnmk  J.  Marslmll, 
Andrew  F.  Curtis. 

Verification  as  in  Form  CC.  The  claiarant  also  files  his  own 
affidavit  to  the  same  efl'ect.    Mule  75,  p.  223. 

Wherg  a  mill  site  is  applied  for  in  connection  with  a 
lode  a  second  affidavit  substantially  according  to  the  follow- 
ing form  is  required.     13  L.  O.  159. 

(  BB.)    PROOF  OF  MILL  SITE  USED  FOR  MINING  (OK  MILLING) 

PURPOSES. 

STATE  OF  COLORADO,  ")„„ 
County  of  Garfield.       J  *'^' 

Before  me  the  subscriber,  a  Notary 
Public  in  and  for  said  County,  personally  api)Cared  C.  N.  (yveig, 
(claimant),  and  Harnj  Evaw<  and  James  W.  Hoss  (witnesses),  who 
being  duly  sworn,  say  e  tch  for  himself  and  noi  one  for  the  other, 
that  he  is  a  citizen  of  the  Uniied  States  and  resides  in  said  Coun- 
ty. That  he  is  familiar  with  the  Gaf/Ml  Mill  site.  Survey  Lot  No. 
66B6  B,  for  which  the  said  O.  N.  Oreig  has  apr)lied  for  Patent  in 
the  United  Stales  Land  Office  at  GIsnwond  Sprimis,  Colorado. 
That  the  ground  embraced  in  said  survey  is  used  or  occupied  by 
said  claimant  for  mirdng  purposes,  to-wit:  as  a  dumjj  for  the 
Qiififerm/dn  Lode,  and  contains  an  ore  house  used  in  the  working 
Qfsaid  l<xle;  also  a  fxiarding  house  uvd  by  miners  engaged  in  work- 
ing said  lode;  also  a  tramway  and  cornish  jig  used  in  operating 
said  Lode  (etc.,  as  the  case  may  be). 

And  the  said  Harry  Evans  and  James  W.  Ross,  severally,  say 
tha*  they  have  no  interest  whatever  in  said  mill  site  or  in  the  ap- 
plication for  patent  therefor.  0.  IV.  Greig. 

Harry  Evajis. 
James  W.  Boss, 

Verification  as  in  form  CC. 


APPLICATION  FOR  PATENT.  279 

The  improvements  must  be  iu  the  nature  of  mills 
flumes,  ditches,  or  other  things  incidental  to  milling  or 
mining.  Buildings  and  roads  not  used  for  such  purposes 
cannot  be  considered  ;  otherwise  if  they  are  so  used;  trails 
ofl"the  claim,  used  for  carrying  ore,  have  been  accepted  as 
part  of  the  improvements.     14  L.  0.  209. 

It  is  always  advisable  to  apply  for  a  mill  site  in  connec- 
tion with  a  lode  claim  :  and  in  applying  for  a  lode  patent 
a  mill  site  can  be  included,  and  surface  for  building  pur- 
poses readily  acquired  at  a  cost  of  $50  less  than  if  separate 
applications  are  made,     f^ee  pages  128-130. 

The  lode  is  always  distinguished  as  Survey  Lot  A  — 
the  mill  site  by  the  siime  number  with  the  addition  of  "IJ." 
The  mill  site  may  be  in  another  Mining  Di.strict  or  in  a 
section  different  from  that  containing  the  lode. 

In  such  applications  there  must  be  a  plat,  and  notice  K 
posted  on  both  lode  and  mill  site;  but  if  the  notice  has  been 
not  posted  on  the  latter  owing  to  excusable  mistake,  it  has 
been  disregarded.     14  L.  0.  52 ;  151. 

A  mill  site  is  not  allovyed  to  abut  against  the  end  line  of 
a  lode  claim  (9  L.  O.  188)  unless  there  be  special  proof  that, 
notwithstanding  the  presumption  in  such  case,  the  land  is 
not  mineral  and  the  lode  does  not  continue  through  it. 
7  L.  0.  17P. 

Two  mill  sites  not  containing  together  more  than  5 
acres  may  be  included  in  one  application.     11  L.  0.  102. 

The  Liind  Office  distinguishes  between  a  mere  water 
right  and  a  mill  site.  13  L.  0.  110.  The  use  of  a  spring  is 
not  a  mill  site  occupation.     Id.  197. 

P1.ACER  PATE-NT. 

Lodes  and  Placers  Distinguished. — Only  metal- 
liferous deposits  in  place  are  considered  lodes  under  the 
mining  act.    9  L.  0.  148.     Everything  else  of  a  mineral 


280        APPLICATION  FOR  PATENT. 

character,  i.  e.,  lands  coutainiug  a  mineral  substance  render- 
ing them  of  more  valae  for  the  extraction  thereof  than  for 
surface  purposes  is  treated  as  placer  ground.  The  rulings 
to  this  effect  are  cited  on  pages  117-118.  In  addition  to 
cases  there  given  it  has  been  ruled  that  lime-stone  for  lime- 
kiln purposes  may  be  located  as  placer  ground.  9  L.  0.  5. 
Mica  may  be  entered  as  a  mining  (presumably  a  placer) 
claim.  2  L.  0.  131.  Iron  may  be  lode  or  placer,  according 
to  the  nature  of  the  deposit.  Coal  and  Salines  come  uuder 
special  laws. 

Placer  claims  require  a  material  subdivision  into — 

(1)  Claims  located  on  unsurveyed  lands ; 

(2)  Claims  located  by  adopting  the  Governmental  sub- 
divisions of  lands  already  surveyed. 

PLACEK  PATENT  ON  UNSURVEYED  LANDS. 

In  applying  for  patent  on  a  placer  claim  located  upon 
unsurveyed  lands  the  foregoing  forms,  with  obvious  altera- 
tions will  suffice. 

In  addition  the  Surveyor  General's  office  requires  a 
descriptive  survey,  based  on  L.  O.  Circular,  September  23, 
1882,  found  in  9  L.  O.  130,  and  the  Land  Office  requires  proof 
that  the  claim  contains  no  known  lodes,  excepting,  of 
course,  such  as  are  especially  applied  for  in  the  application 
itself  or  recognized  as  the  property  of  others  and  excepted 
therefrom.  The  descriptive  report  to  the  Surveyor  Gen- 
eral the  deputy  makes  out  without  special  instructions  on 
receipt  of  "  B,"  the  order  for  survey.  See  rule  43,  p.  238. 
The  form  of  descripive  report  is  given  uuder  Applications 
for  Patent  by  Governmental  Subdivisions,  page  284. 

Where  a  placer  contains  known  lodos  owned  by 
the    applicant,  they    are    applied  for    as  parcel    of   the 


APPLICATION  FOR  PATENT.  281 

placer  application  and  are  specially  designated  on  the 
survey  by  their  names  but  without  separate  numbers  and 
platted  each  with  a  width  of  50  feet,  or  with  the  full  width 
if  so  located,  and  the  claimant  elects  to  survey  them  for 
such  full  width,  paying  the  lode  price  for  such  full  width. 
If  such  lodes  have  never  been  previously  located  a  formal 
discovery  and  record  of  the  same  should  bo  made  and 
,  abstract  filed  the  same  as  for  the  placer. 

Where  a  lode  runs  through  a  placer  which  has  been 
already  patented  without  reference  to  such  lode,  the  lode 
owner  applies  for  survey  and  patent  over  the  same  ground, 
(5  L.  O.  5)  but  is  limited  to  50  feet  width.  10  L.  O.  18 ; 
9  L.  O.  211 ;  1.3  L.  O.  39.  The  prior  placer  patentee  may 
(as  the  Land  Office  intimates)  advei"se,  but  if  the  lode  was 
not  known  it  should  not  be  patented  to  the  placer  claimant 
because  it  is  his  alresuly  under  his  original  placer  patent, 
and  we  a(iprehend  that  the  lode  i)atcnt  should  issue  on  the 
lode  claimant's  ex  parte  showing,  leaving  the  question  of 
title  to  the  courts.  Biit  if  the  lode  claimant  adverse  pend- 
ing the  placer  application  the  question  can  be  determined 
in  advance  and  patent  issue  to  the  proper  parties  in  the 
first  instance. 

In  requesting  order  for  survey,  name  the  lodes,  i  e.,.  in- 
sert in  form  "A"  "The  Special  Delivery  Pla  er,  includin  three 
known  lodes  to-wit:  The  Silence,  The  Security  and  The  Celerity" 
etc.,  and  send  copies  of  location  certificate  of  each  lode. 
See  page  216. 

Where  the  lode  and  placer  do  not  touch  they  cannot  go 
in  the  same  application.    5  L.  0.  162. 

Stakin;;  Intertei-ences.— W^here  alodc  survey  shows 
intersection  of  former  surveys,  these  are  noted  in  the  field- 
book  but  not  staked  ;  but  in  placer  applications  all  inter- 


282  APPLICATION  FOR  PATENT. 

ferences  are  ordered  by  the  departmenl  to  be  marked  with 
stakes. 

Tlie  survey  being  approved,  the  Surveyor  G-eneral  for- 
wards to  the  Land  Office  and  to  the  cliimant  the  same  pa- 
pers which  he  forwards  in  the  case  of  a  lode  claim,  and  in 
addition,  to  the  claimant,  a  transcript  of  the  descriptive  re- 
port. 

The  claimant  then  posts,  advertises  and  files — the  same 
as  In  the  case  of  a  lode  claim,  wth  the  addition  of  the  fol- 
lowing affidavit : 

(  CC.)    PROOF   THAT   NO    KNOWN    VEINS    EXIST    IN    PLACEE 

CLAIM. 

STATE  OF  COLORADO,  \  „„ 
County  of  Fitkin.  (■"''• 

William  J.  Chamberlain  and  William 
Hoac/.  each  of  lawful  age  and  resident  in  Asije/i.  in  the  said  Coun- 
ty, being  fir-t  duly  sworn,  each  for  himself,  and  not  one  for  the 
other,  saith,  that  he  is  a  citizen  of  the  United  States;  that  he  is 
well  acquainted  with  the  K''yM,oii£  Placer  Mining  (31aim,  situate  in 
Roarinfj  Fork  Mining  District,  County  of  Pi  kin.  State  of  Colora  o, 
claimed  by  J'>hn  WardeU  applicant  for  United  States  Patent 
therefor;  that  for  many  years  lie  has  resided  near  to,  and  is  well 
acquainted  with  the  chiracter  of  said  laud,  having  frequently 
passed  over  the  same;  that  hislvtiowledge  of  said  land  is  such  as 
to  enable  him  to  testify  uuderstandingly  in  regard  tliereto,  and 
that  there  is  not,  to  his  knowledge,  wiiliiu  the  limits  tliereof,  any 
known  vein  or  lode,  of  quartz  or  other  rock  in  place,  bearing 
gold,  silver,  cinnabar,  lead,  tin  or  copper,  upon  said  claim  or  any 
part  thereof,  and  further,  that  he  has  no  interest  whatever  in  the 
said  placer  claim. 

Jofin  WardeU, 
Wm.  J  Chamberlain. 
Wm.  Hotia. 
Subscribed  and  sworn  to  before  me,  this  first  day  of  May,  A. 
D.  1888;  and  I  hereby  certify  that  the  foregoing  afiidavit  was 
read  to  the  above   named    Willinm  J.  Chamberlain  and  William 
Hoag,  previous  to  their  namis  being  subscribed  thereto,  and  that 
deponents  are  reputable  persons,  to  whom  full  faith  and  credit 
should  be  given. 

Mulford  Van  HDcenbergh, 
[seal.]  Notary  Public. 

The  Placer  Claimant  must  join  in  the  foregoing  affida- 
vit or  file  a  similar  one.     R.  59  p.  220. 


APPLICATION  FOR  PATENT.  283 

APPLICATION   FOR  PATENT  ON  SUEVEYEI>  LANDS. 

The  language  of  the  Congressional  Act  as  to  this  class 
of  claims  is  obscure,  but  it  seems  that  where  a  placer  deposit 
is  found  on  surveyed  lands,  discovery,  locati(tn  and  record 
must  be  made  exactly  as  in  the  case  of  discovery  on  un- 
surveyed  public  domain  except  that  instead  of  a  description 
by  metes  and  bounds  the  location  certificate  should  describe 
it  as  the  nerth-eint  quarter  of  section  3  Tp.  10  d'C.  using  one 
name  for  each  20  acres  and  not  claiming  more  than  160 
acres  by  one  record. 

It  is  advisable  to  give  it  a  name  as  in  other  cases. 

Although  already  surveyed  it  should  be  staked,  mark- 
ing the  stakes  with  the  name  of  the  claim  and  number  of 
the  corner  to  indicate  the  appropriation,  replacing  the  gov- 
ernment stakes  if  not  there  found,  but  we  are  not  prepared 
to  say  that  this  staking  is  essential.  The  location  aLd 
record  being  complete,  in  applying  for  patent  the  Surveyor 
General's  office  does  not  require  any  request  for  survey,  the 
ground  being  already  surveyed  ;  nor  copy  of  the  location 
certificate,  because  the  reference  to  the  governmental  sub- 
division is  sufficient. 

The  form  A  is  therefore  dispensed  with  and  in  its  stead 
the  following  printed  blank  is  in  use  : 

(  DD.)   APPLICATION  FOR  ORDER  FOE  DESCRIPTIVE  REPORT 

ON   PLACER. 

GEoncETowN,  Colo.,  May  1, 1888. 
United  States  Surveyor-General, 

Denver,  Colorado. 
Sir:— I  hereby  make  application  for  an  order  to  be  issued  to 
Allx'rt  A>C7i((.<!C,  U .  S.  Deputy  Mineral  Surveyor,  under  provisions 
of  circular  of  the  General  Land  Oflice,  approved  September  2?,, 
1882,  to  make  an  exaiiunatinii  and  file  his  descriptive  report  upon 
the  claim  of  myself  upon  the  Hyena  Placur,  located  in  SiMinixh 
Bar  Mining  District  -Glenr  Creek  County,  Central  City  Land 
District,  embracing  the  N.  E.  J4  of  Section  8,  Township 
3,  S.  Rangt"  No  73  West  of  the  6th  Principal  Meridian,  in  the 
State  of  Colorado. 


284  APPLICATION  FOR  PATENT. 

I  have  deposited  for  office  work  on  same  %5  to  the  credit  of 
the  Treasurer  of  the  United  States  at  the  Denver  National  Bank 
(U.  S.  Depositorj-,)  with  request  that  duplicate  certificate  be  for- 
warded to  you. 

George  W.Hall, 
P.  O.  address  Qeorgetown'fioki.  Claunant. 

On  receipt  of  the  above  the  Surveyor-General  issues  his 

(EE.)    OEDEE  FOE  DESCEIPTIVE  EEPOET. 

DEPARTMENT  OF  THE  INTERIOR, 

Oefice  of  U.  S.  Surveyor  General, 
Denver,  Colorado,  May  2, 1888. 
To  any  U.  S.  Deputy  Mineral  Surveyor  in  the  District  of  Colorado- 
Sir  :  You  are  hereby  directed  to  make  an  examination  and 
file  your  descriptive  report  under  provisions  of  the  General  Land 
Office  Circular  approved  September  23,  1SS2,  upon  the  claim  of 
Gef/rqe  W.  Hall  upon  the  Hyena  Placer,  located  in  Spanish  Bar 
Mining  Distiict,  Clear  Creek  County,  Central  City  1  and  District, 
embracing  the  N.  E.  %  of  Sec.  8,  Township  No.  3  S.,  Range  No,  73 
West  of  the  Cth  Principal  Meridian,  Colorado. 

Oney  GarstarpJien, 
U.  S.  Surveyor  General  lor  Colorado. 

This  descriptive  report  includes  proof  that  $500  im- 
provements have  been  made  on  the  claim:  the  Surveyor- 
General's  transcript  of  the  same  includes  the  certificate  to 
such  effect.     The  following  is  the  form : 

(  FF.)    DESCEIPTIVE   EEPORT. 

*Survey  No.  6,000. 

Central  City  Land  Ofeice. 

Descriptive  report  on  the  claim  of  George  ^Y.  Hall  upon  the 
Hyena  Placer,  in  8parmh  Bar  Mining  District,  Clear  Creek  Coun- 
ty, Colorado.    Subiijitted  by 

A.  E.  Ghase, 
U.  S.  Deputy  Mineral  Surveyor. 

(rt)  The  soil  is  a  black  loam,  varying  from  3  to  6  inches  in 
depth,  underlaid  with  auriferous  gravel.  The  timber  consists  of  a 
scattering  growth  of  spruce  and  yellow  pine  trees,  and  along  the 
banks  of  the  creek  there  is  a  dense  grow.th  of  small  willows. 


*If  on  surveyed  lands  there  is  no  survey  number. 


APPLICATION    FOR   PATENT.  285 


(b)  Eeaver  creek,  a  small  stream  about  10  feet  wide,  runs  in 
a,  north-easterly  direction  ihroush  the  claim. 

(c)  The  workings  upon  the  claim  consist  of  an  open  cut  90 
feet  long,  211  feet  wide  and  lo  feet  deep.  Course  N.  80°  E.  The 
center  ol  the  westerly  end  bears  N.  i>'^  VV.;  30  leet  from  corner  No. 
4  a  ditch  H^vi  feet  long,  2  feet  wide  and  18  inches  deep,  course 
north  easterly,  the  head  of  which  bears  N.  3''  E.  120  feet  from 
corner  No  O."  A  shaft  :ixO  feet,  H)  leet  deep,  which  bears  from 
corner  No.  1.  N.  2^  \V.  75  feet,  and  a  drift  :5x()  feet,  18  feet  deep 
which  bears  from  corner  No.  4,  N.  ^7°  E.  420  feet. 

(rf'  This  claim  is  located  about  three  miles  in  a  south- 
easterly direction  frum  the  town  of  May.sville,  and  one  mile  west 
•of  Clear  Creek  Junction. 

(e)  The  liaker  and  .Swansea  lodes  located  about  three  miles 
in  a  northerly  ilirection  from  this  claim  are  the  nearest  well 
known  lode  claims.  No  lode  has  ever  been  discovered  upon  this 
claim  or  in  the  immediate  vieiniiy. 

(/)  This  claim  is  well  adapted  for  placer  mining  purposes. 
Water  has  bvcn  t.ronght  from  Heaver  Creek  to  work  the  lower 
portion  of  the  claim,  and  it  can  be  brought  from  a  point  in  the 
same  creek  about  }-^  of  a  mile  above  to  work  the  whojc  claim. 

(g)  The  works  or  expenditutes  upon  this  claim,  placed 
thereon  bv  the  claimant  an<l  his  grantors,  consist  of  an  open  cut 
SO  feet  long.  2o  feet  wide  and  10  feet  deep.  Course  N.  80'  K.  The 
center  of  the  westerly  end  bears  N.  .5°  W.  30  feet  from  corner  No. 
4.  Value  8:'.50.iK).  Aditch  8.'j0  feet  long,  2  feet  wide  and  18  inches 
deep  tlie  head  of  which  bears  N.  :>°  E.  120  feet  from  corner  No.  0. 
Course  northeasterlv  to  the  open  cut  mentioned  above.  Value 
S125,(!0.  A  .shaft  3x0  feet,  10  feet  deep,  which  bears  from  corner 
No.  4,  N.  2°  W.  75  feet.     V,iltij:5ii. 

(h)  There  are  no  salt-licks,  saltsprings,  mines  nor  mill  seats 
upon  this  claim. 

I,  A.  E.  Chnne.  U.S.  Deputy  Mineral  Siu-veyor,  do  solemnly 
swear  that  in  pursuance  of  an  order  from  Oney' Cur-starphen,  Sur- 
veyor (ieneral  of  the  public  lands  in  the  State  of  Colorado,  bear- 
ing date  the  li<il  day  of  Mmj.  iss.s,  I  liave  made  a  personal  and 
thorough  examination  of  the  claim  of  Geo.  It'.  Hall  upon  the 
Hyenn  i'lacer,  in  S/Minish  Bar  Mining  District,  Clear  Cirek County , 
(Colorado,  and  that  the  foregoing  descriptive  report  is  a  true  rep- 
resentation of  the  facts  in  the  case. 

A.  E.  Chase, 
U  S.  Deputy  Mineral. Surveyor. 

Subscribed  by  said /I.  E.  CMse,  U.S.  Dejiuty  Mineral  Sur- 
veyor, and  sworn  to  before  me  this  4(h  day  of  May,  188.S 

[Seal.]  JesKe  S.  Kiinifnll, 

Noiary  Public. 

We  hereby  certify  that  we  are  personally  familiar  with  the 
claim  of  Gt'.//-.'/i»  11'.  ILiU  u\ion  tho  IlycitK  Placer,  in  .s'p(////.s7i  liiir 
Mining  District,  Clear  Crak  County,  Colorado,  and    that  the 


286  APPLICATION  FOR  PATENT. 

foregoing  descriptive  report  of  A.  E.  Chm^e,  U.  S.  Deputy  Mineral 
Surveyor,  is  in  all  respects  to  the  best  of  our  knowledge  and 
beliefi  true  and  accurate, 

"^      '  Daniel  Roberts. 

Patrick  McNulty. 

Subscribed  and  sworn  to  by  the  above  named  persons  before 
methis4<?idayof  itfay,  1888.  „    x>    ^  ,7 

Jesse  S.  Randall, 
rggal.]  Notary  Public. 

OFFICE  U.  S.  SURVEYOR  GENERAL, 

COLORADO. 

Denver,  Ma7j  6,  1888. 
The  foregoing  descriptive  report  on  the  claim  of  George  W. 
Hall  upon  the  Hyena  Placer,  in  Spanish  Bar  Mining  District,  CUar 
Cree><-  County,  Colorado,  having  been  critically  examined,  is 
found  to  conform  to  the  requirements  of  the  circular  from  the 
General  office,  approved  September  23,  1882. 

Oney  Carstarphen, 
U.  S.  Surveyor  General  for  Colorado. 

The  descriptive  report  having  been  received  the  Sur- 
veyor General  returns  his  transcript  of  the  same  to  the 
claimant  or  his  attorney. 

The  attorney  then  makes  out  his  notices,  K,  which 
(without  any  plat)  describe  the  land  by  its  governmental 
subdivisions. 

These  notices  are  posted  in  the  Land  Office  and  on  the 
claim,  and  advertised,  and  the  claimant  proceeds  in  all 
further  particulars  the  same  as  in  application  for  patent  on 
unsurveyed  lands.  There  seem  to  be  no  variations  in  the  pro- 
cedure, except  such  as  are  necessarily  implied,  from  the 
fact  that  the  Government  survey  is  adopted,  and  a  partic- 
ular quarter  section  or  other  series  of  subdivisions  has  he- 
come  the  claim  and  no  order  for  survey,  plat  or  field  notes 
are  required  ;  and  excepting  further  the  Descriptive  Eeport 
and  non-mineral  affidavit  required  on  all  Placer  applica- 

cations.. 

The  transcript  of  the  Descriptive  Eeport,  after  he  has 
made  use  of  it  for  the  preparation  of  his  notices  K,  the 
attorney  forwards  to  the  local  Land  Office  with  the  first  set 
of  papers. 


APPLICATION  FOR  PATENT.  287 

Joinder  of  Several  Lode  Locations  or  Several 
Placers  as  one  Claim. — In  the  case  of  the   S'.  Louis  Co. 
V.   Kemp,   decided  in  18S1  (101  U-  S.  (iUo ;   11  M.  K.  673),   a 
Placer  had  been  piiteuted  in  excess  of  IGO  acres.     The   Su- 
preme Court  sustained  the  patent,  and  in  support  of  their 
decision  asserted  tliat  a  miner's  claim  miRht  consist  of  s6veral 
locations;  that  several  contiguous  locations  beinR  purchased 
hj-  one  niau  became   his    claim.     They  S6y :     "Such  is  the 
general   understanding  of  miners  and  the  meaning  they 
attach  to  the  term."'     Even  what  seem  to  us  the  erroneous 
impressions  of  our  court  of  last  resort  command  respect,  and 
its  decisions  are  none  the  less  law,  even  though  they  compel 
us  to  accept  new  meanings  to  the  words  of  our   language. 
In  fact  where  claims  under  district  rules  were  limited  to  100 
feet  square  or  other  small  dimensions,  it  has  been  very  com- 
mon to  buy  up  many  such  claims  and  record  them  as  one  lo- 
cation.  The  interpretation  was,  nevertheless,  strictly  with- 
in the  province  and  range  of  judicial  construction  ;  and  as 
to  Placers  the  Congressional  section  is  not  clear  as  to  what 
constitutes  the  limit  of  a  claim.     But  the  decision  in  no 
event  applies  to  lodes.     As  to  them  the  statute  itself.  Section 
2320,  limits  and  defines  a  lode  claim  in   terms.    The  Land 
Office  overlooking  these  distinctions  and  following  the  fore- 
going decision  without  reference  to  them,  in  regulating  the 
practice   in  ap|>lying  for  patent,  has  ruled  that  any  number 
of  mining  locations,  lode  or  placer,   which   touch,  consti- 
tute one  claim  and  may  be  patented  under  one  application 
and  upon  one  set  of  $500  improvements.   12  L.  0.  214,  264, 
288. 

Such  has  become  the  u?ual  practice,  and  it  will  stand 
until  the  abuses  under  it  lead  to  either  a  reconsideration  of 
it  or  to  statutory  amendments.    See  p.  118. 


288  APPLICATION  FOR  PATENT. 

In  the  Central  City  Land  District  as  many  as  31  claims 
have  been  thus  united  in  one  application  and  when  they 
run  parallel,  a  cross  location  lying  at  right  angles  is  made 
to  unite  them  so  as  to  comply  with  the  ruling  that  they 
must  be  contiguous  or  touch. 

If  $500  improvements  are  sufficient  to  patent  any  num- 
ber of  contiguous  claims  we  do  not  know  why  $100  in  labor 
should  not  be  sufficient  for  annual  labor  on  the  entire 
group  ;  but  the  Laud  Office  halts  here  with  a  distinction, 
and  in  the  non-abandonment  affidavit  M  requires  proof  of 
labor  done  on  or  for  each  claim,  or  resumed,  for  the  entire 
gioup. 

The  courts  have  not  yet  to  our  knowledge  passed  upon 
this  class  of  applications,  nor  do  we  assume  that  they  could 
do  so  upon  the  trial  of  an  ordinary  adverse  claim,  but  we 
have  no  hesitation  in  pronouncing  them  illegal,  in  the  case 
of  lode  groups.  Nevertheless,  if  perfected  by  patent  (at 
least  in  the  case  of  placers)  the  patent  would  doubtless  be 
upheld  until  set  aside  by  direct  proceedings  for  that  pur- 
pose. 

Where  several  lodes  are  thus  applied  for,  they  receive 
only  one  survey-lot  number,  but  the  corners  of  all  are  num- 
bered consecutively:  i.  e.,  if  the  first  named  lode  has  four 
corners,  the  first  corner  of  the  second  lode  will  be  No.  5, 
etc.  Where  there  is  a  placer  with  lode  or  lodes,  the  lode 
corners  are  numbered  after  those  of  the  placer. 

IMPROVEMENTS. 

What  Constitutes  Improvements.— Under-ground 
workings,  cross-cuts  or  tunnels  (on  or  off  the  ground,  pro- 
vided they  are  held  by  applicant  for  its  benefit,  and  are 
6ona^de  intended  to  cut  it)  buildings,  roads,  flumes,  fixed 
machinery,  &c.,  or  the  result  of  any  other  bona  fide  expend- 
itures, constitute  improvements. 


APPLICATION   POR  PATENT.  289 

Excepting  labor  which  leaves  no  trace  of  itself,  such  as 
hoisting  water,  whatever  counts  for  annual  labor  will 
count  for  the  $500  improvements.     See  p.  57. 

Untlivido*!  intei-rsis  in  tunnels,  etc.,  held  in  com- 
mon with  parties  who  are  not  applicants  are  allowed  to 
count  as  parcel  of  the  necessary  $500  improvements. 

Purchased  Iinproveinents. — Abandoned  Im- 
provements.— Old  improvements  on  the  ground  may  be 
purchased  from  the  rightful  owners,  and  so  enure  to  the 
benefit  of  the  applicant.  The  deed  conveying  them  should 
be  a  quit  claim  of  all  vendor's  interest  in  the  claim  under 
the  name  by  which  patent  is  sought,  and  of  all  improve- 
ments thereon,  &c.,  and  where  abandoned  property  is  re- 
located or  jumped,  the  old  improvements  do  uot  count 
without  such  purchase.  The  Department  in  a  circular  has 
intimated  that  they  could  not  even  be  purchased  {Copp,  M. 
L.  259,)  but  this  is  uot  an  adjudication,  and  we  do  not  con- 
sider it  to  be  law. 

Amonjj  placer  improvements  cannot  be  counted 
dwelling  houses  or  other  structures  uot  associated  with 
mini'jg. 

Iaipr(ivemen(8  Comi>leicd  Pendiiia;  Applica- 
tion.— It  is  not  e-ssential  that  the  .$500  worth  of  improve- 
ments should  exist  on  the  ground  at  the  time  of  the  survey. 
They  may  be  completed  at  any  time  during  the  period  of 
publication.  In  such  cases  the  Surveyor  General  endorses 
diagram  "F"  with  a  certificate  not  containing  the  latter 
part  of  "G.'"  The  Deputy  in  his  field  notes  describes  such 
improvements  as  may  exist,  and  adds,  iu  substance:  "  1  hese 
improvements  are  not  worth  $500,  it  being  the  intention  of 
claimant  to  complete  the  necessary  amount  during  the  sixty 
days  publication."  When  ( ompleted  the  Deputy  sends  a 
special  affidavit  to  the  Surveyor  General,  who  files  it  and 

forwards  his  certificate  to  the  Land  Office. 

10 


290  APPLICATION  FOR  PATENT. 

The  General  Land  Office  has  ruled  that  the  Surveyor 
General's  certificate  of  $500  improvements  is  a  statutory 
requirement  [R.  S.  J  2325)  and  must  be  filed  strictly  within 
the  period  of  publication.     12  L.  0.  130. 

3Iill  Site  Improvements. — Seep.  279. 

On  application  for  several  Claims. — Seep.  287. 

Where  the  Ai>plicaiit  Dies  hefore  Entry. — On  fil- 
ing proof  of  decease  the  papers  are  perfected  either  by  an 
heir  or  the  executor  or  administrator,  and  patent  issues  to 
"the  heirs  of"  the  applicant. 

AVhen  he  dies  after  entry  the  patent  issues  in  the 
name  of  the  deceased.     11  L.  0.  100. 

Application  by  Trustee. — Any  party  applying  to 
make  entry  as  trustee  must  disclose  full.y  the  nature  of  the 
trust  and  the  name  of  the  cestui  que  trust ;  and  such  trustee, 
as  well  as  the  beneficiaries,  must  furnish  satisfactory  proof 
of  citizenship;  and  the  names  of  beneficiaries,  as  well  as 
that  of  the  trustee,  must  be  inserted  in  the  final  certificate 
of  entry.     Bale  3,  L.  0.  Cii  tular  June  8,  1883. 

Patent  to  Assignees. — On  bringing  up  Abstract  to 
date  the  Land  Oflice  have  issued  patents  to  purchasers  from 
the  entry-man.  But  as  the  deed  carries  the  patented  title 
this  is  not  necessary ;  nor  is  it  regular.  The  Land  Office 
cannot  be  presumed  to  follow  title  after  entry,  and  might 
by  such  procedure  issue  it  to  a  party  not  entitled  in  equity 
to  take  it. 

Application  Without  Record  Title. — Where  the 
title  is  old  and  complicated  a  party  may  without  filing  ab- 
stract, supply  the  same  by  affidavits  under  R.  S.  ?  2332,  as 
explained  by  Land  Office  Eules  65-70  {p.  220),  that  he  has 
worked  and  possessed  the  claim  for  the  limitation  period  of 
five  years,     (p.  199). 


APPLICATION   FOR  PATENT.  291 

Possessory  title  to  a  lode  claim  held  and  worked  for  a 
period  ecjual  to  the  time  iireseribed  by  the  statute  of  limitations 
for  miiiiiiK  claims  of  the  State  or  Territory  where  tlie  same  may 
be  situated,  may.  in  the  absence  of  any  adverse  claim,  be  estab- 
lishe<l  intlie  same  manner  as  now  allowed  in  jilacer  claims,  and 
indicated  generally  in  para^'raplis  07,  (58  and  (59,  of  the  circular 
hereby  amended.    UulfS,  L.  O.,  Clrculir  July  6.  li^H'A 

Contliciiiis  Applications. — Where  au  adverse  is 
pending  no  adverse  need  be  filed  against  a  subsequent  ap- 
plication.   Steel  V.  Gold  Co.  18  Xev.  80. 

The  Survej'or  General  may  approve  a  second  applica- 
tion over  the  first  when  the  first  applicant  has  failed  to 
proceed  in  the  Land  Office.  7  L.  0.  51.  The  later  appli- 
cant files  a  certificate  to  such  eflect  from  the  Laud  Office 
and  procures  order  for  survey  excluding  the  conflict. 

Kulings  as  to  Posting. — The  notice  K  must  remain 
posted  on  the  Land  Office  Bulletin  during  the  whole  period 
of  tiO  days.     9  L.  0.  93. 

Posting  notice  inside  an  op  n  shaft  house  held  to  be  in 
a  "conspicuous  place."     9  L.  0.  113. 

Miscellaneous  Rulings  on  Patent  Application. 
— Where  a  lode  claim  crosncs  tiie  boundaries  of  a  land  dis- 
trict apply  in  district  where  principal  workings  lie  but  the 
notice  K  should  be  posted  in  the  Register's  office  of  each 
di.strict.  12  L.  0.  130.  When  the  land  office  is  closed  dur- 
ing the  period  of  60  days  the  time  of  closing  should  not  be 
counted  as  part  of  the  advertising  period.  9  L.  0.  93.  A 
claim  already  patented  cannot  be  made  the  basis  of  a  second 
application  for  more  surface.    9  L.  0.  113. 

Where  application  is  begun  in  the  wrong  laud  district 
proceedings  must  be  de  novo,  after  error  discovered.  12  L. 
0  158. 

A  lode  location  need  not  necessarilj^  be  a  parallelogram. 
11  L.  0.  132.  But  in  such  case  it  has  no  apex  rights.  Stone 
Lode  case,  US  U.S.  196. 


292  ADVERSE  CLAIM. 

ADTERSE  CLAIM. 


statutory  Ke((nirenients.  Period  Fixed. — If  no  adverse 
claim  shall  have  been  filed  with  the  Register  and  the  Receiver 
of  the  proper  land-office  at  the  expiration  of  the  sixty  days  of 
publication,  it  shall  be  assumed  that  the  applicant  is  en- 
titled to  a  patent,  upon  the  payment  to  the  proper  officer  of 
five  dollars  per  acre,  and  that  no  adverse  claim  exists  ;  and  there- 
after no  objection  from  third  parties  to  the  issuance  of  a  patent 
shall  be  heard,  except  it  be  shown  that  the  applicant  has  failed  to 
comply  with  the  terms  of  this  chapter.    R.  S.  §  2325. 

Statutory  Refiuirements.  Oath.  Nature,  Extent  and  Bound- 
aries .Hust  be  Shown.  Operates  as  a  Stay.— Where  an  adverse 
claim  is  filed  during  the  period  of  publication,  it  shall  be  upon 
oath  of  ihe  person  or  persons  making  the  same,  and  shall  show 
the  nature,  boundaries,  and  extent  of  such  adverse  claim,  and  all 

groceedings,  except  the  publication  of  notice  and  making  and 
ling  of  the  atHdavit  thereof,  shall  be  stayed  until  the  contro- 
versy shall  have  been  settled  or  decided  by  a  court  of  competent 
jurib"diction,  or  the  adverse  claim  waived.    R.  S.  1 2326. 

An  adver.se  claim  must  be  made  during  the  period  of 
sixty  days  publication,  which  is  construed  to  mean  on  or 
before  the  sixtieth  day  after  the  date  of  first  newspaper 
publication,  such  date  being  excluded  in  the  calculation. 
See  p.  265. 

The  proceedings  are  as  follows  :  the  adverse  claimant 
subscribes  and  verifies  his 

(GG.)    ADVERSE  CLAIM. 

United  States  Land  Office,  at  Leaclville,  Colorado  : 

In  the  matter  of  the  application  of  Jesse.  White  for  a  United 
States  patent  to  the  Bear  Lode  Mining  Claim,  situate  in  Alpine 
Mining  District,  County  of  Lake,  State  of  Colorado. 

To  the  Register  and  Receiver  of  the  United  States  Land  Of- 
fice, and  to  the  above  named  claimant  : 

Whereas,  Jesse  White  (the  applicant)  did,  on  the  first  day  of 
March,  A.  D.  1888,  file  in  the  District  Land  Office  of  the  United 
States  at  LeadmUe,  Colorado,  a  cei  tain  plat  of  a  survey  of  a  cer- 
tain lode,  together  with  his  application  for  a  United  States  patent 
for  said  lode,  naming  and  calling  the  said  lode  in  said  plat  and 
application  the  B&xr  Lode,  situate  in  Alpine  Mining  District, 
County  of //(fe,  State  of  Colorado  ;  said  survey  and  i)lat  being 
designated  as  mineral  survey  No  .55ri5  and  consisting  of  150()  lin- 
ear feet,  together  with  surface  ground  300  feet  in  width  ;  and  the 


ADVERSE  CLAIM.  293 

said  Jes-se  White  did.  at  the  same  time  and  place,  give  notice  that 
he  would  apply  for  a  United  States  patent  lor  the  above  described 
lode  and  premises  iu  substance  as  follows  : 

{Here  attach  coijy  Cff  newspaper  publication.) 

And,  Whereivi,  the  first  publication  of  said  notice  of  said  ap- 
plication ai>peared  in  the  Leutinlle  Ilentld-Dcniftcrdt,  a  weekly- 
newspaper  published  at  Leadville,  in  said  County  and  State,  on 
the  'iMl  day  of  March,  A.  D.  18S8. 

Now,  T?wr(fure,  I,  J.  Brixbin  Walker,  a  citizen  of  the  United 
States  over  the  age  of  twenty-one  years,  residing  in  and  my  post- 
ollice  address  being  Denver,  in  the  County  of  Arapahoe,  in  said 
State,  do,  on  this  Jirnl  day  of  May,  A.  D.  1x88,  enter  this,  my  pro- 
test, against  the  issuing  of  a  patent  to  tlie  .said  Jex-se  White,  for 
his  pretended  claim  upon  the  .<5i)-called  Bear  Lode,  as  set  forth  in 
his  said  plat  and  held  notes,  as  aforesaid,  for  the  following  rea- 
sons, to-wit  : 

1.  The  .surface  gi-ound  and  veins  or  lodes  contained  there- 
in as  set  forth  and  de-crii)cd  in  the  plat  and  field  notes  of  the 
said  Je.s.fe  White,  or  a  great  portion  tliereof,  are  not  the  property 
of  the  said  applicant,  neither  is  he  entitled  to  hold  the  same  un- 
der or  I'y  virtue  of  the  local  laws,  rules  and  customs  of  miners  in 
said  mining  district,  the  laws  of  the  State  of  Colorado,  or  the 
Statutes  of  the  United  States  relating  to  mining  claims. 

2.  Because  a  great  portion  of  the  premises  described  in  said 
plat  and  notice  of  said  applicant,  and  claimed  by  him  as  the  so- 
called  Bear  Lode,  is  claimed  adversely,  and  is  owned  by  this 
protestant,  and  is  in  fact  a  portion  of  the  premises  claimed  and 
owned  bv  this  protestant  as  the  E'ep/umt  Lode,  as  will  appear  by 
reference  to  an  abstract  of  title  herewith  tiled,  made  a  part  of 
this  protest  and  marked  exhibit  A. 

3.  Because  this  protestant  (and  his  grantors)  have  held,  oc- 
cupied and  possessed  a  great  portion  of  the  premises  set  forth  and 
described  by  the  said  ^es.w  White  in  his  plat  and  notice  of  the  so- 
called  Bear  Lode,  long  prior  to  the  pretended  discovery  and  loca- 
tion of  the  so-called  Bear  Lode  ;  such  occupation  and  possession 
of  this  protestant  (and  his  grantors)  having  been  under  and  by 
virtue  of  a  full  compliance  with  the  local  laws,  rules  and  customs 
of  said  mining  district,  and  the  laws  of  said  State,  and  of  the 
United  States,  pertaining  to  mineral  lands. 

4.  Because  this  protestant  (and  his  grantors)  have  held,  oc- 
cupied and  pos.sessed  all  that  portion  of  tne  .so-called  Bear  Lode, 
as  represented  on  the  plat  of  a  survey  made  by  CJufle.f  J.  Moore 
Deputy  United  States  Mineral  Surveyor  and  coU)rod  nd,  said  plat 
of  said  survey  being  herewitli  tiled,  marked  exhibit  B,  and  made 
a  part  of  this' prote.^it,  and  have  hold,  occupicrt  and  i)Ossessed  the 
same  long  prior  to  tliei)retendi'd  discovery  and  location  of  the  so- 
called  itear  Lode,  and  is  the  original  discoverer  and  locator  of  said 


294  ADVERSE  CLAIM. 

Elephant  Lode,  (or  is  a  bona  fide  purchaser  for  a  valuable  consid- 
eration, from  or  through  the  original  discoverer  and  locator  of 
said  Elejihant  Lode,  by  conveyances,)  as  shown  on  said  abstract. 
Seepaoe  216. 

5.  Because  a  valid  discovery,  Location  and  Record  of  said 
Eoephant  Lode  was  made  by  this  protestant  (oi  his  grantors),  in 
strict  compliance  with  said  local  laws,  rules  and  customs,  and  the 
laws  of  the  State  of  Colorado  and  of  the  United  States,  and  while 
the  same  was  vacant  mineral  land  of  the  United  States,  open  to 
occupation  long  prior  to  any  pretended  Discovery  or  Location 
thereof  by  said  Jesse  IFArte  (or  his  grantors)  and  said  ^iepTjaft^  I, ode 
hath  been  occupied  and  possessed  as  aforesaid,  ever  since  its  dis- 
covery as  aforesaid,  by  this  protestant  (and  his  grantors,)  under 
and  by  virtue  of  such  discovery,  location  and  record. 

6.  Because  the  discovery  shaft  of  the  so-called  Bear  Lode 
was  not  of  the  legal  depth  often  feet  from  the  lowest  part  of  the 
rim  at  the  surface,  as  required  by  law  at  the  date  of  the  pretended 
record  of  the  same,  and  has  never  been  since  sunk  to  that  depth. 
7,  etc.,  8  etc. 

Therefore,  this  protestant  enters  this  his  protest  against 
the  issuance  of  a  patent  to  the  said  Jesse  White,  for  his  claim  upon 
the  so-called  Bear  Lode. 

J.  Brisbin  Walker. 

State  of  Colorado,  ( 
County  of  Lake.  J  ' ' 
On  this  1st  day  of  May,  A.  0.1888,  before  me,  the  subscriber, 
a  Notary  Public  in  and  for  said  County,  personally  appeared  the 
above-named  J.  Brisbin  Watker,  ^vho  being  lirst  duly  sworn,  saith 
that  he  is  the  adverse  claimant  named  in  the  foregoing  protest, 
and  adverse  claim  above  subscribed  by  him  That  he  has  read 
the  same  and  knows  the  contents  thereof;  that  the  same  is  true 
in  substance  and  in  fact ;  and  that  the  said  adverse  claim  is  made 
in  good  faith  and  to  protect  his  better  and  prior  title. 

J.  Brisbin  Walker. 

Sworn  and  subscribed  before  me,  this  first  day  of  May,  A.  D. 
1888.  Geo.  P.  Brown,  N.  P.    [seal.] 

To  the  above  reasons  others  may  be  added  where  spe- 
cific facts  are  known  going  to  the  invalidity  of  the  claim 
sought  to  be  patented  ;  but  in  every  case  allege  that  the 
claims  conflict  and  that  the  adverse  claimant  is  owner  of 
the  conflicting  area  and  veins,  as  iu  paragraph  No.  2  of  the 
above  form.  The  first  five  paragraphs  constitute  a  good 
statement  of  an  adverse  right  according  to  the  various  Land 
Office  rulings,  and  others  are  added  only  as  precautionary. 


ADVERSE  CLAIM.  295 

Exiiibii  "A"  is  an  abstract  of  title  certified  as  in  form 
"N"  and  should  contain  a  copy  of  the  Location  Certificate. 
See  Form,  p.  259. 

The  failure  to  file  the  Abstract  within  the  period  of 
publication  has  been  held  not  to  be  a  fatal  error ;  but  no 
cautious  Attorney  will  bo  willing  to  risk  this  ruling. 

Mxliibit  "B"  is  a  plat  made  by  a  U.  S.  D.  M.  Surveyor, 
showing  the  interference  of  the  two  claims,  certified  as  fol- 
lows: 

I  herel)y  certify  that  the  above  diagram  correctlv  represents 
the  conflict  claimed  to  exist  between  the  Bear  Lode  and  the  £fe- 
p/toTii  Lode  as  actually  surveyed  by  me.  .\nd  I  further  certify 
that  the  value  of  ilie  labor  arid  improvements  on  the  EUpfmiU 
Lode  made  by  the  adverse  claimant  (and  his  grantors)  is  not  less 
than  one  hundred  dollars. 

Chiirles  J.  Moore,  U.  S.  D.  Mineral  Surveyor. 

Improvements.— The  amount  of  improvements  on 
the  ad  versing  claim  is  immaterial,  but  they  are  required  by 
rule  to  show  on  the  jdat. — p.  217. 

Separate  .Vdver.se  Claims.— Where  there  are  sev- 
eral Applications  to  be  adverscd  by  a  single  .  ode,  a  separate 
Adverse  Claim  with  its  Plat  and  Abstract  must  be  filed  in 
each  case.  Copp  M.  L.,  I'^d;  and  where  the  adverse  claim- 
ant has  several  lodes  with  which  he  intends  to  adverse  a 
single  application,  the  better  practice  is  to  file  an  advei-se  on 
behalf  of  each  lode,  accompanied  by  its  proper  exhibits: 
but  if  he  prefer  to  unite  his  several  titles  in  a  single  adverse, 
we  do  not  see  how  it  could  be  rightfully  rejected.  In  either 
case,  only  one  suit  in  support  is  required. 

Adverse  Claim,  Where  and  by  Wh»>nx  Verified. 
— An  adverse  claim  is  usually  verified  by  the  adverse 
claimant  or  one  of  the  adverse  claimants  and  within  the 
land  district. 

But  by  act  of  April  26,  1882  (post  p.  316)  it  may  be  ver- 
ified by  an  agent  or  attorney  in  fact  cognizant  of  the  facts 


296  ADVERSE  CL.AIM. 

stated.  Such  agent  must  make  his  verification  in  the  land 
district.  A  corporation  verifies  either  hy  its  executive  of- 
ficer (president)  or  its  agent  thereto  authorized.  1  L.  O. 
132. 

And  if  the  chiimant  is  a  non-resident  or  absent  from 
the  district  and  verifies  it  personally  he  may  make  such 
verification  wherever  he  may  be,  before  the  clerk  of  any 
court  of  record  or  a  notary  public,  anyivhere  within  the 
United  States. 

In  cases  of  emergency  it  is  a  legitimate  expedient  to 
have  the  intending  adverse  claimant  convey  to  a  third 
party  within  the  district,  who  then  makes  and  verifies  the 
adverse  claim  precisely  as  if  he  were  the  real,  as  he  becomes 
in  fact,  the  legal,  owner  of  the  ad  versing  claim.  But  since 
the  act  allowing  verification  by  the  adverse  claimant  be- 
yond the  district  or  the  filing  by  an  agent,  this  course  need 
seldom  be  resorted  to. 

Form  of  Adverse  and  Verification  by  Agent. — 
Proceed  as  in  form  GG  to  the  last  paragraph  and  insert : 

Wherefore  this  protestant,  by  Oharlei  T.  Limberg,  his  duly 
authorized  agent  and  attorney  iu  fact  who  is  personally  cognizant 
of  the  facts  herein  stated  enters  this  his  protest  against  the  issu- 
ance of  a  patent  to  the  said  Jesse  White  for  his  claim  upon  the  so- 
called  Bear  Lode.  J.  Brisbin  Walker, 

By  Charles  T.  Limberg, 
His  agent  and  attorney  in  fact. 

STATE  OF  COLORADO,  I  ^.. 
County  of  i«te.  j^*- 

On  th\<,  Jlrst  day  of  May,  A.  D.  1888,  before  me,  the  subscriber, 
a  Notary  Public  in  and  for  said  County,  personally  appeared  the 
above  named  Charles  T.  Limberg,  who  being  tirst  duly  sworu, 
saith  that  he  is  the  duly  authorized  agent  and  attorney  iu  fact  of 
the  above  named  J.  Brisbin  Walker,  adverse  claimant  named 
in  the  foregoing  protest  and  adverse  claim  above  subscribed  by 
atiiant  as  will  further  appear  by  the  copy  of  his  power  of 
attorney  hereto  attached  marked  exhibit  C  ;  that  atiiant  has  read 
the  foregoing  protest  and  adverse  claim,  and  is  cognizant  of  the 
facts  therein  stated,  and  that  the  same  is  true  in  substance  and 


ADVERSE   CLA.IM.  29/ 

in  fact,  and  is  made  in  good  fuilli  to  protect  the  prior  and  better 
title  of  his  said  principal. 

ClIARLRS  T.  LiMBERG, 

Sworn  and  subscribed  before  me  this  first  day  of  May.  A.  D. 
1888.  J>miel  Sayer,  Notary  Public.    [seaL.] 

By  Co-owner. — A  single  co-owner  may  make  and  ver- 
ify the  advei-se  claim  "on  behalf  of  himself  and  his  co-owners," 
which  i)hrase  should,  in  the  form  "  GG,"  follow  the  name 
of  the  protcstant  wherever  it  occurs  or  where  the  context 
requires  it,  when  an  adverse  is  so  made. 

And  it  is  held  that  one  co-owner  may  adverse  although 
another  co-owner  refuse  to  join  him. 

And  one  co-owner  cannot  withdraw  his  adverse  so  as  to 
prejudice  another  who  has  joined  with  Lim. 

Computation  of  Tinae. — The  Department  at  one 
time  ruled  that  when  the  publication  was  in  a  weekly  news- 
paper, which  requires  10  insertions,  the  Adverse  could  be 
filed  within  the  period  necessary  to  complete  publication, 
which  (excluding  the  first  day)  would  bring  it  to  the  63d 
day. 

But  by  circular  of  January  14, 1884,  they  ruled  that  the 
period  must  be  strictly  limited  to  60  days,  excluding  the 
first  day,  and  this  is  the  present  holding.     10  L.  0.  339. 

To  instance,  where  first  publication  was  on  Juuel,  they 
exclude  the  first  day  aud  count — 

Juno  29  days ; 

July   31  days. 

Total  60  days,  and  make  July  31,  the  last  day  on  which 
an  Adverse  could  be  filed. 

Time  Cannot  be  Kxtr-niled. — No  adverse  claim  can 
be  received  after  the  expiration  of  the  statutory  period  ; 
even  a  stipulation  between  parties,  enlarging  the  time  for 
filing,  is  of  no  efiect  aud  will  be  disregarded  by  the  Land 


298  ADVERSE    CLAIM. 

Office.  G  L.  0.  105 ;  9  L.  0.5;  Sickel  208,  314.  This  ruling 
of  the  Dcpartmeut  as  to  its  owu  action  is  undoubtedly  cor- 
rect ;  only  in  a  Court  of  Chancery,  If  anywhere,  could  re- 
lief in  such  a  case  be  afforded. 

So  also  the  30  days'  time  allowed  for  commencing  suit 
cannot  be  extended ;  the  law  limiting  the  period  is  manda- 
tory ;  if  the  papers  intended  to  commence  suit  are  delayed 
in  the  mail,  or  actioa  is  delayed  through  the  agency  of  an 
attorney  corrupted,  the  Laud  Office  can  afford  no  relief. — 
Sickel  190,  320. 

Period  of  Publication. — See  page  265. 

Reiiublicatioii. — When  for  any  cause  a  republication 
is  required,  the  Adverse  Claim  must  be  re-filed  during  the 
second  period  of  advertising ;  but  no  additional  filing  fee  is 
charged. — Siclcel,  313. 

Sunday. —  It  has  been  ruled  that  an  Adverse  may  be 
filed  on  Sunday,  when  the  last  day  falls  on  Sunday:  and 
out  of  office  hours  on  any  day ;  but  that  the  receiving  and 
filing  out  of  office  hours,  or  on  Sunday,  is  not  compulsory 
upon  the  officers.— 6  L.  0.  73.  SicM,  301.  And  the  fact 
that  the  last  day  falls  on  Sunday  does  not  extend  the  time 
to  the  day  following.  In  re  Ground  Hoj  Lode  Adverse,  April 
17,  1888. 

Amendment. — An  adverse  claim  cannot  be  with- 
drawn for  amendment ;  but  if  a  material  defect  should  be 
discovered,  there  would  be  nothing  to  prevent  the  filing  of 
a  second  adverse,  complete  in  itself,  provided  the  60  days 
had  not  expired.     Copp,  121,  155,  227.     Sickel  208. 

A\  hat  Claims  stiould  Adverse. — A  tunnel  should 
adverse  to  protect  its  line  (p.  138.)  A  mill  site  must  ad- 
verse a  lode  claim  to  protect  its  rights.  9  L.  0.  71.  So  also 
must  a  town  lot  oi  other  surface  right.  A  co-tenant 
who    is     claimed  to    have    been   forfeited   out,    must   ad- 


ADVERSE    CLAIM.  299 

verse  to  protect  such  interest  as  he  may  assert.  9  L.  <). 
113.  Of  course  h)*lo  must  adverse  lode,  and  mill  site  must 
adverse  mill  site,  or  all  preteuse  of  prior  title  will  cease  to 
be  of  avail.    Ste  p.  76. 

Such  easements  (flumes,  ditch  rights,  &c.)  as  are  pro- 
tected by  statute  need  not  adverse.  EoikiccUv.  Gruluim,  9 
Colo.  3fi.    Seep.  112. 

Plat  aii<I  Abstract. — When  it  is  impossible  to  pro- 
cure an  actual  survey,  an  adverse  claim  showing  the  na- 
ture, extent  and  bouudaries  of  the  conflict  stating  the 
reason  why  the  claim  could  not  be  reached  for  survey,  will 
be  suflScient.     8  L.  0.  188. 

An  adverse  against  a  placer  entered  by  governmental 
sub-divisions  need  not  be  accompanied  by  a  i)lat  made  on  a 
special  survey.  Failure  of  adverse  claimant  to  furnish  cer- 
tified copy  of  location  certificate,  held  not  fatal.  1-1  L.  0. 
237. 

iMi.s'.-eilaiiPoiis  Kuliii^>-. — An  adverse  claim  sub- 
stantially defective  may  be  rejected.  Bechner  v.  Coates,  3 
L.  0. 18 ;  9  L.  0.  5 ;  but  if  it  show  the  nature,  boundaries  and 
extent  of  the  claim  the  laud  oflice  will  leave  all  further 
questions  to  the  court;  4  L.  0.  6C, ;  7  L.  0.  51 ;    9  L.  0.  109. 

The  land  oflice  is  not  bound  to  receive  an  adverse 
claim  when  the  filing  fee  is  not  paid  or  tendered  ;  3  L.  0. 
36. 

Where  there  is  no  surface  conflict  an  adverse  cannot  be 
maintained  ;  7  L.  0.  50.  An  adverse  with  no  surface  con- 
flict, filed  to  anticii)ate  conflict  expected  on  the  dip,  will  not 
be  received.  New  York  Ilitl  Co.  v.  Rocky  Bar  Co.  15  L.  0.  3. 
Champion  Co.  v.  Wyomiug  Co.,  16,  Pac.  5]  3. 

An  adverse  based  on  a  claim  located  after  the  publica- 
tion began  not  conttiniug  allegations  denying  the  valid- 


300  ADVERSE    CLAIM. 

ity  of  the  prior  claim  ad  versed,  will  be  rejected  ;  1  L.  0.  50. 
Contra,  9  L.  0.  190. 

Eyectmeut,  in  Support  of  Adverse. — After  the  Ad- 
verse Claim  is  filed,  the  Adverse  Claimant  must  bring  suit 
in  Ejectment  for  the  premises  in  dispute,  within  30  days, 
under  the  terms  of  R.  8.  ?  2326,  which  says  : 

"  It  shall  be  the  duty  of  the  Adverse  claimant,  within  thirty 
days  after  filing  his  claim,  to  commence  proceedings  in  a  Court  of 
competent  jurisdiction,  to  determine  the  question  of  the  right  of 
possession,  and  prosecute  the  same  with  reasonable  diligence  to 
final  judgment ;  and  a  failure  so  to  do  shall  be  a  waiver  of  his 
Adverse  claim." 

The  Proper  Court  is  usually  the  District  Court  of 
the  County  where  the  mine  is  situate,  except  in  those  cases 
where  the  facts  of  value  and  citizenship  are  such  that  the 
U.  S.  Circuit  Court  may  have  jurisdiction.  It  has  been  held 
that  the  Federal  Courts  have  jurisdiction  in  all  suits  sup- 
porting Adverse  Claims,  (where  the  value  reaches  the  juris- 
dictional limit,  then  $500,  now  $2000,)  on  account  of  such 
cases  arising  under  laws  of  the  United  States.  Frank  Co.  v. 
Larimer  Co.,  1  M.  R.  150.  But  that  decision  has  not  been 
followed  in  more  recent  cases  in  the  same  Court. 

Even  when  the  Courts  of  the  United  States  have  un- 
doubted jurisdiction  the  State  Court  is  not  ousted,  but  the 
suit  may  be  commenced  in  the  State  Court,  subject  to  De- 
fendant's right  of  removal. 

Filing  Complaint,  but  delaying  issue  of  Summons,  is 

not  a  compliance  with  the  law.     Gopp,  M.  L.,  296. 

Title  in  Neither  Party.— That  if,  in  any  action  brought  pur- 
suant to  section  twenty-three  hundred  and  twenty-six  of  the  Re- 
vised Statutes,  title  to  the  ground  in  controversy  shall  not  be  es- 
tat)lished  by  eitlier  party,  the  jury  shall  so  find,  and  judgment 
shall  be  entered  according  to  the  verdict.  In  such  case  costs 
shall  not  be  allowed  to  either  party,  and  the  claimant  shall  not 
proceed  in  the  land  office  or  be  entitled  to  a  patent  for  the 
ground  in  controversy  until  he  shall  have  perfected  his  title.  A. 
C.  March  2,  l&Si. 


ADVERSE   CLAIM.  301 

The  rulings  under  the  above  act  are,  that  each  party  is 
practically  a  plaintiff  and  must  show  his  title ;  that  there 
can  be  no  uon  suit,  but  that  if  neither  show  title  the  verdict 
must  be  special — which  is  an  assertion  that  the  title  re- 
mains in  the  United  States,  so  far,  at  least,  as  the  litigating 
parties  are  concerned.  Jackson  v.  Rohy  109  U.  S.  440.  Rosen- 
thal V.  Ices,  12  Pac.  901. 

Statutory  new  trials  are,  in  practice,  granted  to  either 
party  after  such  verdict. 

The  effect  of  the  act  is  to  prevent  a  recovery  upon 
possession  alone  in  ejectment  supporting  adverse.  Becker 
V.  Pagh,  9  Colo.  589,  This  of  course  would  not  apply  where 
a  party  claims  by  continuous  five  years  possession  under 
R.  S.  ?  2332. 

The  suit  in  support  of  an  adverse  is  one  at  law 
and  not  in  equity.  Burke  v.  McDonald,  13  Pac.  351.  And 
ejectment  is  the  proper  form.       Becker  v.  Pagh,  9  Colo.  589. 

Complaint. — As  the  complaint  is  filed  in  support  of 
the  adverse  it  should  conform  strictly  to  it.  It  should  not 
declare  generally  for  either  lode  but  for  the  interference. 
If  it  declare  for  the  entire  lode  it  would  necessitate  a  dis- 
claimer as  to  parcel  of  the  promises.  There  is  also  a  special 
paragraph  with  regard  to  the  costs. — G.  S.  ^  423. 

(hh.)  fohm  of  com  pl  ain't. 

State  of  Colorado,  \ 
County  of  Dike,      /  ^"^ 

In  the  District  Court  of  said  County. 

J.  Vrisbin  ys'alker,  ]    Plaintiff. 
V.  V 

Jesse  White,       )  Defendant. 
The  plaintiflf  complains  and  alleges  : 

1.  That  on  to  wit:  the  .///vsMayof  J((//!/</n/,  A.  D.  1884,  and 
ever  since  hitherto  he  was,  an<l  is,  tlie  owner  an<l  In  actual 
occupation  of  the  ElepJumt  Lode  Mining  Cliiim,  15iK>  feel  in  length 
by  :i(W  feet  in  width,  situate  in  Mpine  Mining  District,  County 
and  State  aforesaid. 


302  ADVERSE   CLAIM. 

2.  That  the  plnintilf  is,  and  at  all  times  mentioned  In  thi« 
complaint  hath  been,  a  citizen  of  the  United  States,    {or) 

2.  That  at  and  before  the  date  last  aforesaid  theplaintifl  had 
declared  his  intention  to  become  a  citizen  of  the  United  States 
before  a  conrt  of  record,  to-wit  :  The  Court  of  Common  Pleas  of 
the  County  of  Allegheny,  Commonwealth  of  Pennsylvania. 

3.  That  he  claims  the  legal  right  to  occupy  and  possess  said 
premises  and  is  entitled  to  the  possession  thereof  by  virtue  of  full 
compliance  with  the  local  laws  and  rule»  of  miners  In  said  min- 
ing district,  the  laws  of  the  United  States,  and  of  said  State  of 
Colorado,  by  pre-emption  (and  purchase)  and  by  actual  prior 
possession,  as  a  Lode  Mining  Claim,  located  on  the  public  domain 
of  the  United  States.-  See  Code,  §  2G7. 

4.  That  on  or  about  the  first  day  of  November,  A.  D.  1885,  the 
Defendant  wrongfully  entered  upon  parcel  of  said  claim,  to-wit: 
All  that  X)art  of  said  claim  which  is  intersected  i  y  the  exterior 
lines  of  Survey  Lot  No.  .35.5.5,  known  as  the  Bear  Lode  Mining 
Claim,  as  shown  by  plat  marked  Exhibit  "B," '  filed  on  the  first  day 
of  3/«i!/,  A.  D.  1888,  in  the  Land  Office  of  the  United  States,  at 
Leadvilk.  in  the  said  State,  with  the  adverse  claim  of  said  Plaintiff 
against  the  entry  of  said  survey  lot  for  Patent,  such  ground  so 
inter.-ected  being  described  as  follows:  (Tiert  interference  .should  be 
dei^crihed  by  metes^  and  bounds)  and  that  defendant  hath  ever  since 
hitherto  wrongfully  withheld  the  possession  of  said  parcel  of  said 
Elepharit  Lode  from  the  Plaintiff  to  his  damage  in  the  sum  of  one 
hundred  dollars. 

5.  That  this  suit  is  brought  in  .support  of  said  adv-rse  claim, 
and  that  Plaintiff' neces.sarily  disbursed,  expended  and  paid  out 
the  sum  of  Twenty-five  Dollars,  for  jilats,  abstracts,  and  copies  of 
papers  filed  in  .said  Land  OfRce  with  his  said  Adverse  Claim,  and 
also  a  reasonable  counsel  fee,  to-wit:  Fifty  Dollars,  for  the  ex- 
pense of  preparing  his  said  Adverse  Claim. 

Wherefore  Plaintiff  prays  judgment  against  the  Defendant: 

1.  For  the  recovery  of  possession  of  said  parcel  of  said  Ele- 
pMnt  Lode  Mining  Claim. 

2.  For  the  sum  of  One  Hundred  Dollars  Damages. 

3.  For  the  sum  of  Seventy  five  Dollars  expended  in  support 
of  said  Adverse  Claim . 

4.  For  costs  of  suit. 

Wm.  M.  Maguire,  Attorney  for  Plaintiff. 

Add  verification  if  desired  ;  but  in  actions  of  ejectment, 
trespass,  etc.,  the  practice  of  verifying  the  pleadings  ought 
to  be  discouraged. 

Paragraph  2  of  above  complaint  is  inserted  under  the 
suggestion  of  recent  cases  in   California.    Lee  Doonv.Tesh, 


ADVERSE    CLAIM.  303 

6  Pac.  97;  68  Col.  43;  8  Pac.  261;  but  we  do  not  believe  it  to 
be  necessary.  The  fact  of  citizcnslii])  of  ])oth  jiartios  has 
already  been  proved  in  the  Laud  Oltice  proceedings  by 
statutory  evidence— E.  S.,  §2321;  and  in  judicial  proceed- 
ings it  is  presumed  until  denied. 

Paragraph  5  of  above  form  is  based  ou  G.  S.  Sec.  423; 
the  costs  in  such  sGciiou,  strictly  construed,  could  not  be 
made  to  include  more  than  the  expense  of  abstract,  plat 
and  attorney's  fee. 

It  is  customary  between  counsel  to  concede  without 
proofs  that  $75  has  been  paid  uuder  this  allegation.  If  the 
statutory  new  trial  is  taken  this  amount  does  not  seem  to 
go  as  part  of  the  costs,  but  goes  to  the  final  trial. 

There  is  another  style  of  complaint  which  sets  forth 
chronologically  the  fact  of  discovery,  of  sinking  the  shaft 
its  depth,  and  what  it  disclosed  ;  the  placing  of  the  location 
Stake,  the  marking  of  the  claim,  and  the  record  ;  fol- 
lowing the  language  of  the  statute  coucerning  location,  &c.; 
but  many  claims  are  sufficiently  valid  to  maintain  eject- 
ment without  a  strict  location,  or  the  defendant  may  be  in 
position  where  he  is  estopped  from  asserting  weak  points  in 
the  plaintilFs  case,  and  such  recitals  are  not  the  statement 
of  facts  reijuired  by  the  Code.  In  any  event  such  recitals 
lead  to  cumbersome  pleadings  and  to  an  immaterial  issue 
and  are  not  the  ultimate  facts  required  to  be  stated  in 
Code  pleading.  ^ 

General  allegations  of  title  are  sufficient.  Rough  v.  Sim- 
mons, 3  Pac.  804 ;  65  Cal.  227. 

Kulinjis   in   Ejectment  Suppui-ting   Adver.se.— 

An  adverse  claim  may  show  that  the  location  ad  versed  is 
invalid  by  reason  of  the  existence  of  a  third  claim  in  which 
neither  party  has  any  interest.     Harrington  v.   Chambers,  1, 


304  ADVERSE    CLAIM. 

Pac.  362.  Affiimed,  III  U.  S.  350,  bnt  with  only  a  general 
reference  to  this  point  in  the  last  paragraph.  To  the  con- 
trary seems  Strepy  v.  Stark,  7  Colo.  614. 

Declarations  of  a  locator  may  be  given  in  evidence  to 
dispute  his  title.  Harrington  v.  C/iambers,  supra.  But  not  ad- 
missions made  after  he  has  parted  with  his  title.  McGinnis 
V.  Egbert,  8  Colo.  41  ;  15  M.  R.  — . 

Proof  of  €01111116110111)?  Suit. — After  the  complaint 

is  filed  a  certificate  should  be  made  and  signed  by  the  Clerk 

of  the  Coui't  and  filed  within  fifteen  days  in  the  local  Land 

Ofiice,  in  substance  as  follows : 

(  jj.)  certificate  op  suit, 

State  of  Colorado,  i   „ 
County  of  Lfike.       \  ^^• 

I,  J.  H.  Pkiyter.  Clerk  of  the  District  Court  of  said  County,  do 
hereby  certify  that  J.  Brisbin  Walker  did  on  the  11th  day  of  May, 
A.D.  188S,  commence  an  action  iii  said  Court  against  Jesse  M'hiie,  to 
sustain  an  adverse  claim  against  the  Bear  Lode,  Survey  Lot  No. 
5555,  situate  in  Alpine  Mining  District,  Lake  County,  State  of  Col- 
orado, and  to  recover  possession  of  all  that  parcel  of  the  Elephant 
Lode,  embraced  within  the  lines  of  said  Survey  Lot,  situate  in 
said  Mining  District,  and  that  said  action  is  now  pending  and  un- 
determined in  said  Court. 

Attest  my  baud  and  the  seal  of  said  Court  at  Leadvllle,  this 
nth  day  of  May,  A.  D.  1888. 

[SEAL  OF  COURT.]  J.  H.  Playter,  Clerk. 

But  the  failure  to  file  this  certificate  is  not  fatal  under 
Eule  7  of  L.  O.  Circular  of  July  6,  1883,  to-wit: 

7.  Where  an  adverse  claim  has  been  flled,  but  no  suit  com- 
menced against  the  ap]:)licant  Cor  jiatent  within  the  statutory 
period,  a  certificate  to  that  eflcot  by  tb(?Clerk  of  the  State  Court 
having  jurisdiction  in  the  case,  and  also  by  the  Clerk  of  the  Cir- 
cuit Court  of  the  United  States  for  the  district  in  which  the  claim 
is  situated,  will  be  required. 

Diligent  Piosecution. — The  Land  OflBce  cannot  ad- 
judicate upon  the  question  whether  the  suit  is  being  pros- 
ecuted with  due  diligence.  Richmond  Co.  v.  Rose,  114  U.  8., 
576. 


ADVERSE    CLAIM.  305 

Dismissal  and  Reinstatement. — Jurisdiction  once 
atta'-hcd  remains  and  wlicre  default  was  had,  but  tlie  cause 
reinstated,  the  adverse  hohls,  notwitlistaudiug  Certificate 
of  no  suit  pending  had  been  filed  during  the  interval. 
9  L.  O.  161.  Nor  will  a  Receiver's  Receipt  obtained  in  such 
interval  be  allowed  in  evidence.  McEvoyv.  Hyman,  25  Fed. 
539. 

"Waiver  of  Adverse.  Filial  Dism;8sa'. — An  ad- 
verse claim  may  be  waived.  12  L.  0.  167.  Dismissal  of 
the  supporting  suit  is  a  waiver.     Id.  264. 

5.  Where  such  suit  h=s  been  dismissed,  a  certitlcate  of  the 
clerk  of  the  court  to  tliat  effect,  or  a  certified  copy  of  the  order 
of  dismissal,  will  be  sullk'ieiit.  Rule  r>,  /,.  O.  Circular,  July  6, 
1883. 

6.  In  no  case  will  a  relinquishment  of  the  Rround  in  con- 
troversy, or  other  proof,  tiled  with  the  Register  or  Receiver,  be 
accepted  in  lieu  of  the  evidence  required  in  paragraphs  4  and  5. 
—Rule  a,  Ibid. 

PROCEEDINGS  AFTER  DETERMINATION  OF  SUIT. 

Land  OfVioo  KcMniirpinoiit  in  Such  f'ase. — I.  Wliere  an  ad- 
verse claim  lias  been  tiled  and  suit  thereon  commeiK'ed  within 
the  statutory  period,  and  final  judgment  determining  the  right  of 
possession  rendered  in  favor  of  the  applicant,  it  will  not  be  suf- 
ficient for  him  to  file  with  the  Register  a  certificate  of  the  clerk  of 
the  court,  setting  forth  the  facts  as  to  such  judgment,  but  he 
must,  before  he  is  allowed  to  make  entry,  file  a  certified  copy  of 
the  judgment,  togother  with  the  other  evidence  reciuired  by  sec- 
tion 'JoiitJ,  Re\'lse(i  Statutes."    Rule  4  Circ-  July  0, 1883. 

The  ejectment  being  determined  in  favor  of  Defendant 
he  files  a  copy  of  the  judgment  roll  and  enters  the  lot ;  if  in 
favor  of  Plaintiff,  he  completes  proof  in  the  same  manner  as 
the  original  applicant,  and  upon  filing  a  copy  of  the  judg- 
ment roll  is  allowed  to  enter  and  pay  for  the  lode  or  so 
much  as  his  adverse  claim  may  cover;  if  it  claim  only  a 
part  of  the  original  survey,  a  patent  will  issue  to  the  origi- 
nal applicant  for  the  portion  not  in  controversy.  When 
there  is  a  recovery  by  Plaintiff  he  must  obtain  a  new  order 


306  ADVERSE   CLAIM. 

of  survey,  paying  the  same  deposit  as  the  applicant,  and 
must  file  a  new  plat  in  the  Land  Office,  but  of  course  does 
not  have  to  make  publication  or  post  notice  :  with  these 
exceptions,  he  proceeds  after  winning  his  suit,  using  a  full 
set  of  "final  entry  papers,"  with  affidavit  of  citizenship,  the 
same  as  if  he  had  been  an  original  applicant  for  patent. 

When  a  case  is  compromised  after  suit  brought,  it  is 
therefore  always  more  convenient  to  stipulate  to  have  the 
plaintiflf  dismiss,  taking  bond  or  deed  to  secure  the  land 
yielded,  instead  of  taking  verdict  for  either  Plaintiff  or  De- 
fendant. 

In  such  case  upon  filing  Certificate  of  Dismissal  the 
original  survey  goes  to  Patent  without  further  complica- 
tion, and  the  Defendant  can  convey  after  entry  according 
to  the  terms  of  settlement. 

Annual  Ijiibor. — The  pendency  of  an  Adverse  Claim 
or  of  a  suit  supporting  the  same,  does  not  excuse  the  non- 
performance of  annual  labor  on  either  I.ode.  Copp,  273. 
Sickel  371.  But  it  is  not  required  after  entry.  11  L.  0.  67. 
Seep.  56. 

Where  neither  Lode  keeps  up  its  annual  labor  after  ad- 
verse, the  application  may  be  cancelled  on  the  suggestion  of 
an  intervening  relocator.  Higgina  v.  John  Gold  Co.  14  L.  0. 
238. 


PROTEST. 


The  office  of  n  protest  is  to  show  that  no  pateut  such  as 
applied  for  should  isiue — as  where  a  mill  site  pateut  is 
asked  for  on  raiiioral  ground. 

Or  that  it  should  not  issue  to  the  particular  ajiplicaut 
by  reasou  of  some  defect  of  person,  as  that  the  applicant  is 
a  foreign  corporation  ;  or  for  failure  to  comply  with  the 
practice  of  the  departmeut  in  some  serious  particular.  It 
is  not  safe  to  rely  on  the  presumption  that  the  Laud  Office 
will  of  its  own  motion  observe  every  departure  from  its 
owu  rules. 

For  irregularities,  such  as  short  publication,  the  appli- 
cant would  have  to  go  back  to  that  step,  and  during  the  re- 
publication the  protestant  could  adverse. 

The  fact  that  the  protectant  is  or  claims  to  be  the  real 
owner,  or  to  have  the  better  title,  is  the  office  of  an  adverse 
and  not  a  ground  of  protest :  but  it  should  be  averred  to 
give  standing  to  the  protestaut. 

The  protestant  can  never  by  this  means  get  title.  He 
can  at  most,  defeat  the  efforts  of  the  applicant.  He  is  not 
considered  a  party  to  the  proceeding  (4  L.  O.,  114,)  and 
has  no  right  of  appeal:  4  L.  O.,  3;  8    L.  C,  53. 

To  what  exteut  defects  in  the  original  location,  e.  g. 
that  discovery  shaft  is  on  patented  ground;  has  never  dis- 
closed mineral,  entry  by  etc.  See  14  L.  O.,  162:  11  L.  O.,  67; 
and  in  particular,  the  final  paragraph  of  U.  S.  R.  S.  ^  2325. 

FORM  OF  PKOTE.ST. 

Id  the  matter  of  the  application  of  The  Rnnring  Fork  Mining 
Compdn.}/  Tot  patent  on  the  Alicf  H.  Mill  Site  Survey  Lot  No. 
9a0  U,  Central  CUii  Land  (Ifflce.  Colorado. 

Your  Protestant,  Joseph  Ueynolds..  whose  i^o.^t  office  ad- 
dress is  Chicago.  Jllinois.  a  citizen  of  the  United  .^tates  over  ttie 
age  of  twenty-one  years,  heieby  respectfully  protests  against  the 
entry  by  and  issuance  of  patent  to  The  Roaring  Fork  Mining 
Comp'iny  on  their  so  called  mill  site  called  the  Alice  H.  Mill  Site, 
Survey  Lot  No.  930  B.    Because  : 


308  PROTEST. 


1.  The  said  so  called  mill  site  is  not  and  never  was  used  or 
occupied  in  connection  with  said  Alice  H.  Lode  for  mining  or 
milling  purposes. 

2.  It  is  not  and  never  was  used  or  occupied  by  the  appli- 
cant or  its  grantors  in  connection  with  any  lode  or  by  itself  for 
miiung  or  milling  purposes. 

3.  There  are  no  improvements  and  never  have  been  any 
improvements  upon  said  mill  site  except  the  improvemenis  made 
by  your  protestant. 

4.  The  said  mill  site  is  below  the  mill  and  below  the  tail 
race  of  the  mill  of  the  said  applicant  company  and  has  never 
been  and  is  noi  now  parcel  of  nor  appurtenant  to  said  mill  nor 
included  within  the  mill  site  on  which  said  mill  stands. 

5.  Said  so  called  mill  site  or  a  great  part  thereof  has  been 
in  good  faith  located  as  the  Lion  Mill  Site  by  your  protestant 
and  is  now  being  used  for  mining  purposes  in  connection  with 
the  iio«  Lode,  lying  immediately  above  said  mill  site  owned  and 
being  worked  by  your  protestant. 

6.  &c.;  7,  (tc  :  Add  or  substitute  other  reasons  according  to 
the  facts,  e.  g.  The  publication  was  not  posted  on  the  Land 
Office  BuUet'i.i  during  the  period  of  newspaper  I'Ublication— the 
location  of  said  mil  site  is  on  mineral  land  and  land  more  valu- 
able for  mineral  than  for  mill  site  purposes— &c.,  &c. 

Wherefore  f  jr  these  causes  as  verified  by  the  affidavit  of 
your  protestant  attached  hereto,  and  as  well  for  the  want  of 
proper  pruof  that  the  said  so-called  .4 Hce  iT.  Mill  Site  is  being 
"used  or  occupied  by  the  proprietor  of  the  said  Alice  H.  Lode 
for  mining  or  milling  purposes,"  as  required  by  the  terms  of 
section  2337  of  the  Revised  Statutes  of  the  United  States,  and 
that  the  applicant  has  otherwise  failed  to  comply  with  the  terms 
of  Chapter  b  of  Title  XXXIl  of  said  Revised  Statutes,  entiiled, 
"  Mineral  Lands  and  Mining  Resources,"  your  jietitioner  protests 
as  aforesaid. 


EeywAds. 

State  of  CoLOitADO,    ) 
County  of  Gilpin.       f     ' 

Before  me  the  subscriber,  Ed.  W.  HurlbtU.  a  Notary  Public 
in  and  for  said  County,  jiersonally  appeared  Joseph  Iteyruolds , 
who,  being  duly  sworn,  saith  that  he  is  the  protestant  named  in 
the  forpgoing  protest  subscribed  hy  him  ;  that  he  has  read  the 
same  and  kn  )ws  the  contents  thereof,  and  that  the  .same  and  the 
matter*  and  thing*  therein  slated  are  true. 


Reynolds. 


Sworn  and  tubscribed  before  me  this  \Qth  day  ©f  May,  A. 
D.  ISHS. 

[SEAL.]  Ed.  W.  Hurlbut,  N.  P. 


TEXT  OF  U.  S.  STATUTES  REPEALED. 


Sections  of  Act  of  July  ii),  ISHti,  Kepealtil  liy  Act  of  Slay  10,  ISti, 
and  not  fouml  in  the  Bi-rised  Statutes. 

Oriirinal  License  to  Explore.— 5  1.  That  the  mineral  lauds  of 
the  imblic  domain,  both  surveyed  and  unsurveyed,  are  hereby 
declared  to  be  free  and  open  to  exploration  antl  occnpation  by 
all  citizens  of  the  I'nited  States,  ami  those  who  have  declarei 
their  intention  to  become  citizens,  subject  to  such  regulations  as 
may  be  prescribed  by  law,  and  subject  also  to  the  local  customs  or 
rules  of  miners  in  the  several  mining  districts,  so  far  as  the  same 
may  not  be  in  conilict  with  the  laws  of  the  United  States. 

IniprovementN.  Dip.  I'atent.— ?  2.— That  whenever  any  per- 
son or  association  of  persons,  claim  a  vein  or  lode  of  iiuartz.  oroiher 
rock  in  place,  bearing  gold,  silver,  cinnabar,  or  copper,  having 
previously  occupied  and  improved  the  same  according  to  the 
local  custom  or  rules  of  miners  in  the  district  where  the  same  is 
situated,  and  having  expended  in  actual  labor  and  improve- 
ments thereon  an  amount  of  not  less  than  one  thousand  dollars, 
and  in  regard  to  whose  possession  there  is  no  controversy  or  op- 
posing claim,  it  shall  and  may  be  lawful  for  said  claimant  or  as- 
sociation of  claimants  to  lile  in  the  local  J^and  Oflice  a  diagram 
of  the  same,  so  extended  laterally  or  otherwise  as  to  conform  to 
the  local  laws,  customs,  and  rules  of  miners,  and  to  enter  such 
tract  and  receive  a  patent  therefor,  granting  such  mine,  together 
with  the  right  to  follow  such  vein  or  lode  with  its  dips,  angles, 
and  variations,  to  any  depth,  altliougti  it  may  enter  the  land  ad- 
joining, which  land  adjoining  shall  l)e  sold  siilyect  to  this  condi- 
tion. 

Application  for  Patent. — i,  ii— That  upon  the  tiling  of  the  dia- 
gram as  provided  in  the  secf)nd  section  of  this  Ai't,  and  posting 
the  same  in  a  conspicuous  place  on  the  claim,  together  with  a  no- 
tice of  intention  to  apply  for  a  patent,  the  Register  of  the  Land 
Offlce  shall  publish  a  notice  of  the  same  in  a  newsjiaper  published 
nearest  to  the  location  of  said  claim,  and  shall  also  po.^t  sucli  no- 
tice in  his  oflice  for  the  period  of  ninety  davs;  and  after  the  ex- 
piration ol  said  period,  il  no  adverse  claim  .shall  have  been  fded, 
it  shall  be  tne  duty  of  the  Surveyor-General,  upon  application  of 
the  party,  to  survey  the  premises  and  nnike  a  i>lat  thereof,  in- 


310  U.  S.  STATUTES  REPEALED. 

dorseil  with  his  approval,  designating  the  number  and  descrip- 
tion of  the  location,  the  value  of  the  labor  and  improvements, 
and  the  character  of  the  vein  exposed ;  and  upon  tlie  payment 
to  the  T^roper  officer  of  five  dollars  per  acre,  togctlier  with  the 
cost  of  such  survey,  plat,  and  notice,  and  giving  satisfactory  evi- 
dence that  said  diagram  and  notice  have  been  jiostcd  on  the  claim 
during  said  period  of  ninety  days,  the  Register  of  the  Land  Ottice 
shall  transmit  to  the  General  Land  Office  said  plat,  survey,  and 
description  :  and  a  patent  shall  issue  for  the  same  thereupon.  But 
said  plat,  survey,  or  description  shall  in  no  case  cover  more  than 
one  vein  or  lode,  and  no  patent  shall  issue  for  more  than  one  vein 
or  lode,  which  shall  be  expressed  in  the  patent  issued. 

Form  of  Surrey.  Length  of  Claim.— g  4— That  when  such  lo- 
cation and  entry  of  a  mine  shall  be  upon  unsurveyed  lands,  it 
shall  and  may  be  lawful,  after  the  extension  thereto  of  the  public 
surveys,  to  adjust  the  surveys  to  the  limits  of  the  premises  ac- 
cording to  the  location  and  possession  and  plat  aforesaid,  and  the 
Surveyor-General  may,  in  extending  the  surveys,  vary  the  same 
from  a  rectangular  form  to  suit  the  circumstances  of  the  country 
and  the  local  rules,  laws,  and  customs  of  miners;  Provided,  That 
no  location  hereafter  made  shall  exceed  two  hundred  feet  in 
length  along  the  vein  for  each  locator,  with  au  addiiional  claim 
for  discovery  to  the  discoverer  of  the  lode,  with  the  right  to  follow 
such  vein  to  any  depth,  with  all  its  dip>^,  variations,  and  angles, 
together  with  a  reasonable  quantity  of  surface  for  the  convenient 
working  of  the  same  as  fixed  by  local  rules:  A7id  provided  furl  her. 
That  no  i)erson  may  make  more  than  one  location  on  the  same 
lode,  and  not  more  than  three  thousand  feet  shall  be  taken  in  any 
one  claim  by  any  association  of  persons.    See  pages  18,  22. 

Adverse  Claims.—?  6.— That  whenever  any  adverse  claimants 
to  any  mine  located  and  claimed  as  aforesaid  shall  appear  before 
the  api>roval  of  the  survey,  as  provided  in  the  third  section  of 
this  Act,  all  jiroceedings  shall  be  stayed  until  a  final  settlement 
and  adjudication  in  the  courts  of  competent  jurisdiction  of  the 
rights  of  possession  to  such  claim,  when  a  patent  may  issue  as  in 
other  cases. 


FULL  TEXT  OF  UNITED  STATES  LAWS  NOW  IN 

FORCE. 


The  text  is  taken  from  the  last  edition  of  the  "Revised 
Statutes  of  the  United  States,"  1878,  and  the  subsequent 
Sessiou  Laws  to  and  including  the  Session  of  1886-87.  This 
revision  includes  the  unrepealed  sections  of 

An  Act  granting  the  right  of  way  to  ditch  and  canal  owners 
over  the  public  lands,  and  for  other  purposes. — Approved  July  2(; 
18(56. 

An  Act  to  amend  an  Act  granting  the  right  of  way  to  ditch 
and  canal  owners  over  the  public  lands,  and  for  other  purposes, 
—Approved  July  9, 1870. 

An  Act  to  promote  the  development  of  the  mining  resources 
of  the  United  ^U\.W%.— Approved  May  VK  187:;. 

Commonly  called  the  "  Mining  Acts,"  with  all  their 
amendments  and  miscellaneous  sections  from  other  Acts. 

The  repealed  sections,  (being  sections  1,  2,  3,  4  and  G, 
of  the  Act  of  1866,)  repealed  by  the  Act  of  1872,  are  found 
on  preceding  pages  307,308. 

TITLE  XIII,  CHAPTER  17. 

Posnessory  ActionN. — §  910.— No  possessory  action  I  otwcen 
per.tons,  in  any  court  of  the  I'nited  States,  for  the  recovery  of 
any  mining  title,  or  for  damages  to  any  such  title,  shall  be  affect- 
ed by  the  fact  that  the  paramount  title  to  the  land  in  which  such 
mines  lie  is  in  the  I'nited  States  :  but  each  ciuse  shall  be  adjudged 
liy  the  law  of  possession.— .See.  9,  Feb.  27,  186.3.    Hee  pp.'J-\[l 

Note.— All  the  Statutes,  State  or  Federal,  nrinted  in  this 
book,  have  been  compared  with  the  original,  so  as  to  have  its 
exact  wording  and  i>uuetuation. 


312  TEXT   OF    U.   S.   STATUTES. 

TITLE  XXXII,  CHAI'TER  6. 

ENTITLED    "  MINERAL    LANDS    AND    MINING    KESOURCES." 

Reserved  from  Vale  under  the  Pre-Enipfion  Acts. — \  2318. — 
In  all  cases  lands  valuable  for  minerals  shall  be  reserved  from 
sale,  except  as  otherwise  expressly  directed  by  law.— Sec.  5,  Jvly 
4,  1866. 

General  License.— §  2319. — All  valuable  mineral  deposits  in 

lands  belonging  to  the  United  States,  both  surveyed  and  unsur- 
veyed,  are  hereby  declared  to  be  free  and  open  to  exploration 
and  purchase,  and  the  lands  in  which  they  are  found  to  occupa- 
tion and  purchase,  by  citizens  of  the  United  .'-^tates  and  those 
who  have  declared  their  intention  to  become  such,  under  regula- 
District  I  lions  prescribed  by  law,  and  according  to  the  local  cus- 
Rules.  I  toms  or  rules  ol  miners  in  the  several  mining-districts, 
so  far  as  I  he  same  are  applicable  and  not  inconsistent  with  the 
laws  of  the  United  States.— ,S'et'.  1,  May  10.  1872.    See  p.  9. 

Length  of  Claims.- j  2320.  —  Mining-claims  upon  veins  or 
lodes  of  quartz  or  other  rock  in  place  bearing  gold ,  silver,  cin- 
nabar, lead,  tin,  copper,  or  other  valuable  deposits,  heretofore 
located,  shall  be  governed  as  to  length  along  the  vein  or  lode  by 
the  customs,  regulations,  and  laws  in  force  at  the  date  of  their 
location.  A  mining-claim  located  after  the  tenth  day  of  May, 
eighteen  hundred  and  seventy-two,  whether  located  by  one  or 
more  persons,  may  equal,  Ijut  s"hall  not  exceed,  one  thousand  five 
Discovery  I  hundred  feet  in  length  along  the  vein  or  lode  ;  but  no 
Essential.  I  location  of  a  mining-claim  shall  be  made  until  the 
discovery  of  the  vein  or  lode  within  the  limits  of  the  claim  lo- 
Widf  h  of  I  cated.  No  claim  shall  extend  more  than  three  hun- 
ClainiH.  I  dred  feet  on  each  side  of  the  middle  of  the  vein  at  the 
surface,  nor  shall  any  claim  be  limited  by  any  mining  regulation 
to  less  than  twenty-five  feet  on  each  side  of  the  middle  of  the 
vein  at  the  surface,  except  where  adverse  rights  existing  on  the 
tenth  day  of  May,  eighteen  hundred  and  seventy  two,  render 
such  limitation  necessary.  The  end-lines  of  each  claim  shall  be 
parallel  lo  each  other.— ,%(;.  2,  May  10,  1872.    Seej/p.  22,  23,  26. 

Proof  of  Citizenship.—?  2321.— Proof  of  citizenship,  under 
this  chapter,  may  consist,  in  the  case  of  an  individual,  of  his  own 
alfidavit  thereof;  in  the  case  of  an  association  of  persons  unin- 
corporated, of  the  affidavit  of  their  authorized  agent,  made  on  his 
Citizenhhip  of  I  o\yn  knowledge,  or  upon  information  and  belief ; 
Corpomtinns.  |  and  in  the  ca.se  of  a  corporation  organized  under 
the  laws  of  the  United  States,  or  of  any  State  orTerritory  thereof, 
by  the  filing  of  a  certified  copy  of  their  charter  or  certificate  of 
incorporation.— ,S'ftj.  7,  May  10.  1872.    ,S'««p.  201. 

Surface,  IHpand  Side  Veins.—?  2322.— The  locators  ot  all  min- 
ing locations  heretofore  nuide  or  which  shall  hereafter  be  made, 
on  any  mineral  vein,  lode,  or  ledge,  situated  on  the  public  domain. 


TEXT   OF    U.    S.    STATUTES.  313 

their  heirs  and  assigns,  where  in >  ndverso  claim  exists  011  the 
tcii'h  day  of  May,  eiijhteen  hundred  and  seventy-two,  so  long  as 
they  comply  with  the  laws  of  tlie  I'niled  States,  and  with  State, 
Territorial,  and  local  regulations  not  in  contlict  witli  the  laws  of 
the  United  Slates  governing  their  )iossessory  title  shall  have  the 
exclusive  right  of  jjossession  and  enjoyment  of  all  the  surface  ia- 
cludod  within  the  lines  of  th^ir  locations,  and  of  all  veins,  lodes, 
Top  or  Apex  ■  and  ledges  throughout  their  entire  depth,  the  top 
Controls.  I  or  apex  of  which  lies  inside  of  such  surface-lines 
extended  downward  vertically,  althougli  su«h  veins,  lodes,  or 
ledges  may  so  far  depart  from  a  perpendicular  in  their  course 
downward  as  to  extend  outsiile  the  vertical  sid«-liues  of  such 
.surface  locations.  15ut  their  right  of  possession  to  such  outside 
parts  of  such  veins  or  ledges  shall  be  conliued  to  such  portions 
thereof  as  lie  I  ctween  vertical  planes  drawn  downward  as  above 
described,  through  the  enddines  of  their  locaiions,  so  continued 
in  iheir  own  direction  that  such  planes  will  intersect  such  exte- 
Surf»rp  I  '^'"'  l"^'"''^  ^^  such  veins  or  ledges.  And  nothing  in 
I  jjjj^  section  shall  authorize  the  locator  or  possessor  of 
a  vein  or  lode  which  extends  in  its  downward  cour.se  oeyond  the 
vertical  lines  ol  his  claim  to  enter  upon  the  surface  of  a  claim 
owned  or  possessed  by  another.— Sec.  3,  Jfaw  10,  1872.    Seepp.Sb, 

[)i,  '.r>,  1(12. 

Tmiiiels.— J  232S.— Where  a  tunnel  is  run  for  the  development 
of  a  vein  or  lode,  or  for  the  discovery  of  mines,  the  owners  of  such 
tunnel  shall  have  the  right  of  pos.session  of  all  veins  or  lodes 
within  three  thousand  feet  from  the  face  of  such  tunnel  on  the 
line  thereof,  not  previously  known  to  exist,  discovered  in  such 
tunnel,  to  the  same  extent  as  if  discovered  from  the  surface;  and 
locations  on  the  line  of  such  tunnel  of  veins  or  lodes  not  appear- 
ing on  the  surface,  made  by  other  parties  after  the  commence- 
ment of  the  tunnel,  and  while  the  same  is  being  prosecuted  wita 
reasonable  diligence,  shall  be  Invalid;  but  failure  to  iirosecute 
the  work  on  the  tunnel  for  six  months  shall  be  considered  as  an 
abandonment  of  the  right  to  all  undiscovered  veins  on  the  line 
of  such  tunnel.— A-f.  4,  Muy  10,  1872.    i>ee  p.  i:M. 

nistrict  KhIcs. — j*  2321.- The  miners  of  each  mining-district 
may  make  regulations  not  in  conflict  with  the  laws  of  the  United 
Slates,  or  with  the  laws  of  the  State  or  Territory  in  which  the 
district  is  situated,  gctverning  the  location,  manner  of  recording, 
amount  of  work  necessary  to  hold  possession  of  a  mining-claim, 
Locatiuii,  I  subject  to  the  following  retiuirements:  The  location 
Kecord.  |  must  be  disiineily  marked  on  the  ground  so  that  its 
boundaries  can  be  readily  traced.  All  records  ol  mining-claims 
hereafter  made  shall  contain  the  name  or  names  of  the  lix-alors, 
the  date  ol  the  location,  ai.d  such  a  description  of  the  claim  or 
claims  located  by  reference  to  some  natural  object  or  permanent 
Annual  I  monimient  as  will  identify  the  claim.  On  each  claim 
Labor  |  located  after  the  tenth  day  of  May,  eighteen  hiuidred 
and  seventy-two,  and  until  a  natcnt  has  been  isstied  therefor,  not 
less  than  one  hundred  dollars  worth  of  labor  shall  be  i>erformed 
or  improvements  made  during  each  year.    On  all  claims  located 


314  TEXT    OF    U.   S.   STATUTES. 

prior  to  the  tenth  day  of  May,  eighteen  hundred  and  seventy-two, 
ten  dollars'  worth  of  labor  shall  be  performed  or  improvements 
made  by  the*tenth  day  of  June,  eighteen  hundred  and  seventy- 
four,  and  each  year  thereafter,  lor  .each  one  hundred  feet  in 
length  along  the  vein  until  a  patent  has  been  issued  therefor; 
but  where  such  claims  are  held  in  common,  such  expenditure 
may  be  made  upon  any  one  claim;  and  upon  a  failure  to  comply 
with  these  conditions,  the  claim  or  mine  upon  which  such  failure 
occurred  shall  be  open  to  re-location  in  the  same  manner  as  if  no 
location  of  the  same  had  ever  been  made,  provided  that  the  origi- 
nal locators,  their  heirs,  assigns,  or  legal  representatives,  have 
not  resumed  work  upon  the  claim  after  failure  and  before  such 
Forfeiture.  |  location.  Upon  the  failure  of  any  one  of  several  co- 
owners  to  contribute  his  proportion  of  the  expenditures  required 
hereby,  the  co-owners  who  have  performed  the  labor  or  made  the 
improvements  may,  at  the  expiration  of  the  year,  give  such  delin- 
quent co-owner  personal  notice  in  writing  or  notice  by  publica- 
tion in  the  newspaper  published  nearest  the  claim,  for  at  least 
once  a  week  for  ninety  days,  and  if  at  the  expiration  of  ninety 
days  after  such  notice  in  writing  or  by  publication  such  delin- 
quent should  fail  or  refuse  to  contribute  his  proportion  of  the  ex- 
penditure required  by  this  section,  his  interest  in  the  claim  shall 
become  the  property  of  his  co-owners  who  have  made  the  re- 
quired expenditures.— &c.  5,  Mcaj  10,  1872.    Seejxiges  45,  52,  6-1. 

Amendment  of  1875— Labor  by  Tunnel.— [That  section  two 
thousand  three  hundred  and  twenty-four  of  the  Revised  Statutes 
be,  and  the  same  is  hereby,  amended  so  that  where  a  person  or 
company  has  or  may  run  a  tunnel  for  the  purposes  of  developing 
a  lode  or  lodes,  owned  by  said  person  or  company,  the  money  so 
expended  in  said  tunnel  shall  be  taken  and  considered  as  ex- 
I'cnded  on  said  lode  or  lodes,  whether  located  prior  to  or  since  the 
passage  of  said  Act;  and  such  person  or  company  shall  not  be  re- 
quired to  perform  work  on  the  surface  of  said  lode  or  lodes  in 
order  to  hold  the  same  as  required  by  said  Act.l— ^'fc.  1,  Feb'v  11. 
1875. 

Amendment  of  1880.— Annual  Labor  Period  Fixed.— That 
section  twenty-three  hundred  and  twenty-four  of  the  Revised 
Statutes  of  tiie  United  States  be  amended  by  adding  the  following 
words:  "Provided,  That  the  period  within  which  the  work  re- 
quired to  be  done  annually  on  all  unpatented  mineral  claims 
shall  commence  on  the  first  day  of  January  succeeding  the  date 
of  location  of  .such  claim,  and  this  section  shall  apply  to  all  claims 
located  since  the  tenth  day  of  Mav  Anno  Domino  eighteen  hun- 
dred and  seventy-two."— ^'ec.  2,  Jan'y  2,  1«S0.    Seep.  53. 

Application  for  Patent.- 3  2325.  —  A  patent  for  any  land 
claimed  and  located  for  valuable  deposits  may  be  obtained  in  the 
following  manner :    Any  person,  association,  or  corporation  au- 

*N0TE.  -  Instead  of  June  10,  1874,  the  date  ultimately  fixed 
was  January  1,  1875.    S*e  note,  23.  52. 


TEXT  OF  U.  S.  STATUTES.  315 

thorized  to  locate  a  claim  under  thLs  chapter,  having  claimed 

and  located  a  jiioce  ot  land  for  such  jiuriwsc.s,  wlio  has,  or  have, 
conii)lii'd  with  the  terms  of  this  chaiiier,  nmy  tile  in  the  projier 
Land-()iru'e  an  upplieation  Cor  a  patent,  under  oath,  showing 
such  compliance,  together  with  a  jilat  and  field-notes  of  the  claim 
or  claims  in  common,  n)ade  l>y  or  under  the  direction  of  the 
United  States  Surveyor-Ccnenil.  showing  accurately  the  boun- 
daries of  the  claim  or  claims,  which  shall  be  distinctly  marked 
by  monuments  on  the  ground,  and  shall  post  a  copy  of  such  plat, 
together  with  a  notice  of  such  njiplication  for  a  patent,  in  a  con- 
fjncuous  place  on  the  land  embraced  in  such  plat  nrevious  to  the 
filing  of  the  ap|)lication  for  a  patent,  and  shall  file  an  atridavit 
of  at  least  two  persons  that  sueu  notice  has  been  duly  posted,  and 
.shiill  file  a  copy  (jf  the  notice  in  such  Land  Office,  and  shall 
no  IMys  I  thereupon  be  entitled  to  a  patent  for  the  land,  in 
ruliliVatinn.  I  the  manner  following:  The  Register  of  the  Land 
Olliee.  uiMiii  the  filing  of  such  application,  iilat.  field  notes,  no- 
tices, and  allidavits,  shall  publish  a  notice  tiiat  such  application 
has  been  made,  for  the  iieriod  of  sixty  days,  in  a  ne\vspai>er  to  be 
by  him  designated  as  pulilished  nearest  to  such  claim  ;  and  he 
shall  also  post  such  notKH>  in  his  oMice  for  the  same  period.  The 
cliiimjini  at  the  time  of  tiling  this  application,  or  at  any  time 
thereafter,  within  the  sixty  days  of  publication,  shall  file  with 
$.'>00  Improve-  I  the  Register  a"  certificate  of  the  United  States 
intMits.  I  .Survevor-General  that  five  hundred  dollars' 
worth  (if  labor  has  been  expended  or  improvements  made  upon 
the  claim  by  himself  or  grantors  ;  that  the  plat  is  correct,  with 
.such  further  description  by  such  reference  to  natural  objects  or 
permanent  monuments  as" shall  identify  the  claim,  and  furnish 
an  accurate  description,  to  be  incorporated  in  the  patent.  At  the 
e.xi)iration  of  the  sixty  days  of  publication  the  claimiint  shall 
file  his  affidavit,  showing  that  the  plat  and  notice  have  been 
jiosted  in  a  conspicuous j>lace  on  the  claim  during  such  jieriod  of 
Adverse  I  publication.    If  no  adverse  claim  shall  bave  been  filed 

<'laini  1  with  the  Register  ami  the  Receiver  of  the  proper  Land 
Office  at  the  expiration  of  the  sixty  days  of  publication,  it  shall 
be  as.sumed  that  the  apiilicant  is  entitled  to  a  patent,  upon  the 
jiayment  to  the  proper  ollicer  of  five  dollars  per  acre,  and  that 
S.'>"|iiTlno  adverse  claim  exists;    and  therealter  no  objection 

.^tTi'.  I  from  third  parties  to  the  issuance  of  a  patent  shall  be 
heard,  except  it  be  shown  that  the  api>licant  has  failed  to  ci  imply 
with  the  terms  of  this  chapter.— Nee  6,  May  10,  1S72  Hee  App.fvr 
fatent.-m. 

AmPiidniPiit  ofl^SO.     Apiilications  by  Xon-Risidents.— That 

section  iweiuy-thrce  hundred  and  twenty-five  of  the  Revised 
Statutes  of  the  United  States  be  amended  by  adding  thereto  the 
following  words  :  "Prorhieil.  That  where  tne  clamnint  for  a 
patent  is  not  a  resident  of  or  witnin  the  land  district  wherein  the 
vein,  lode,  ledge,  or  deposit  sought  to  be  patented  is  located,  the 
aijplication  for  patent  and  the  affidavits  reipiired  to  be  made  in 
this  section  by  the  claimant  for  such  patent  may  be  made  by  his, 
her,  or  its  authorized  agent,  where  said  ageut  is  conversant  with 


3  1  6  TEXT  OF  U.  S.  STATUTES. 

the  facts  sought  to  be  established  by  said  affidavits  :  And  pro- 
vided. That  this  section  shall  apply  to  all  applications  now 
pending  for  patents  to  mineral  lands."— ;Sec.  l,,7«/«Ma?  2/22, 1880. 
See  page  295. 

,  Adverse  riainiN.— ?  2326.— Where  an  adverse  claim  is  filed  dur- 
ing the  period  of  publication,  it  shall  be  upon  oatli  of  the  person 
or  persons  making  the  same,  and  shall  show  the  nature,  bounda- 
ries, and  extent  of  such  adverse  claim,  and  all  proceedings,  ex- 
cept the  publication  of  notice  and  making  and  filing  of  the  affi- 
davit thereof,  shall  be  stayed  until  the  controversy  shall  have 
been  settled  or  decided  by  a  court  of  competent  jurisdiction,  or 
Suit  Supporting  I  the  adverse  claim  waived.  It  shall  be  the  duty 
in  30  Days.  |  of  the  adverse  claimant,  within  thirty  days 
after  filinghis  claim,  to  commence  proceedings  in  a  court  of  com- 
petent jurisdiction,  to  determine  the  question  ot  the  right  of 
possession,  and  prosecute  the  same  with  reasonable  diligence  to 
Proceedinifs  after  I  final  judgment;  and  a  failure  so  to  do  shall 
Judsment.  |  be  a  waiver  of  his  adverse  claim.  After  such 
judgment  shall  have  been  rendered,  the  party  entitled  to  the  pos- 
session of  the  claim,  or  any  portion  thereof,  may,  without  giving 
further  notice,  file  a  certified  copy  of  the  judgment  roll  with  the 
Kegister  of  the  Land  Office,  together  with  the  certificate  of  the 
Surveyor-General  that  the  requisite  amount  of  labor  has  been  ex- 
pended or  improvements  made  thereon,  and  the  description  re- 
quired in  other  cases,  and  shall  pay  to  the  Receiver  five  dollars 
per  acre  for  his  claim,  together  with  the  proper  fees,  whereupon 
the  whole  proceedings  and  the  judgment  roll  shall  be  certified  by 
the  Register  to  the  Commi-;sioner  of  the  General  Land  Office,  and 
a  patent  shall  issue  thereon  for  the  claim,  or  such  portion  there- 
of as  the  applicant  shall  appear,  from  the  decision  of  the  court, 
to  rightly  possess.  If  it  appears  from  the  decision  of  the  court 
tbat  several  parties  are  entitled  to  separate  and  different  portions 
of  the  claim,  each  party  may  pay  for  h  s  portion  of  the  claim, 
with  the  proper  fees,  and  file  the  certificate  and  description  by 
tne  Surveyor-General,  wheretipon  the  Register  shall  certify  the 
proceedings  and  judgment  roll  to  the  Commissioner  of  the  Gen- 
eral Land  Ofiice,  as  in  the  preceding  case,  and  patents  shall 
issue  to  the  several  parties  according  to  their  respective  rights. 
Nothing  herein  contained  shall  be  construed  to  prevent  the 
alienation  of  the  title  conveyed  by  a  patent  for  a  mining  claim 
to  any  person  whatever.— >ec.  7,  May  10, 1872     Seepage  292. 

Amendment  of  1882.    Adverse  by  Agency:  by  Non-ltesidents. 

—That  the  adverse  claim  required  by  section  twenty-three  hun- 
dred and  twenty-six  of  the  Revised  Statutes  may  be  verified  by 
the  oath  of  any  "duly  authorized  agent  or  attorney-in-fact  of  the 
a'iverse  claimant  cognizant  of  the  facts  stated  ;  and  the  adverse 
claimant,  if  residing  or  at  the  time  being  beyond  the  li  idts  of  the 
district  wherein  the  claim  is  situated,  may  make  oath  to  the  ad- 
verse claim  before  the  clerk  of  a^y  court  of  record  of  the  United 
States  or  the  State  or  Territory  where  the  adverse  claimant  may 
then  be,  or  before  any  notary  public  of  such  State  or  Territory.-- 
Sec.  1,  April  26,  1882.    22  SUii.  L.  49. 


TEXT  OF  U.  S.  STATUTES.  3 1  7 


IiU'iu.  Afliiluvits  Out  of  Liinil  District.— That  applicants 
for  mineral  patents,  if  residing  beyond  the  limits  of  the  dis- 
trict wherein  the  claim  is  situated,  may  make  any  oath  or 
atlidavit  rei|Uired  for  proof  of  citizenship  l>efore  the  clerk  of  any 
court  of  record  or  before  any  notary  i)ublic  of  any  State  or  Ter- 
ritory.—Sec.  2,  /(/. 

Survey.- ?  2327.— The  description  of  vein  or  load  claims,  up- 
on surveyed  lands,  shall  designate  the  location  of  tne  claim  witli 
reference  to  the  lines  of  the  public  surveys,  but  need  not  conform 
therewith;  but  where  a  patent  shall  be  issued  f<ir  claims  upon 
unsurveyed  lands,  the  Surveyor-General,  in  extending  the  sur- 
veys, shall  adjust  the  same  to  the  boundaries  of  such  patented 
claim,  according  to  the  plat  or  description  there' f,  but  so  as  in 
no  case  to  interfere  with  or  change  the  location  of  any  such  pat- 
ented claim  —Sec.  8,  Mo;/  10,  1872.    Seejxige  283. 

Previous  .\ppliratlonK. — ?  2328.— Applications  for  patents  for 
mining  clai's  under  former  laws  now  pending  may  be  prose- 
cuted to  a  final  decision  in  the  General  Land  Ollice  ;  but  in  such 
cases  where  adverse  riglits  are  not  affected  thereby  fiatcnts  may 
issue  in  pursuance  of  the  provisions  of  this  chapter  ;  and  a  1  pat- 
ents for  mining  clrims  upon  veins  or  lodes  heielofore  issued  snail 
convey  all  the  rights  and  privileges  conferred  by  this  chapter 
Adverse  Uiirhts  I  where  no  adverse  rights  existed  on  the  tenth 
Exct'pteil.  I  day  of  May,  eightcn  hundred  and  seventy-two. 
Sec.  9,  May  10,  1872.    Seepages  83-8ti. 

Placers  Open  to  Kntry.  —  ?  2329.  —  Claims  usually  called 
"placers,"  inclmling  all  forms  of  deposit,  excepting  veins  of 
quartz,  or  other  'ock  in  place,  shall  be  subject  to  entry  and  pat- 
eat,  under  like  circumstances  and  conditions,  and  upon  similar 
proceedings,  as  are  provided  for  vein  or  lode  claims  ;  but  where 
the  lands  have  been  pr  vionsly  surveyed  Ijy  the  United  States, 
the  entry  in  its  exterior  limits  shall  conform  to  the  hgal  sub- 
divisions of  the  jiublic  lands.— ,Scf.  12,  Julu  9,  1870.    See  par/e  116. 

Lesal  Siilalivisions  of  Placers.- 2  2330— Legal  subdivisions  of 
forty  acres  may  be  sub-divi<led  ii\to  ten  acre  tracts;  and  two  or 
more  persons,  or  associations  of  jtersons,  having contigruous  claims 
of  any  size,  althongli  such  chums  may  be  less  than  ten  acres 
each,  may  nuike  joint  entry  thereof  :  but  no  location  of  a  placer 
claim,  made  after  the  ninth  day  of  July,  eighteen  hnidred  and 
KiO  .tore  I  seventy,  sliall  exceed  one  hundred  and  sixty  acres 
Placers.  1  for  any  one  person  or  association  of  persons,  which 
location  shall  conform  to  the  United  States  surveys  ;  and  >  othing 
in  this  section  contained  shall  defeat  or  impair  any  bona  fide  pre- 
emption or  homestead  claim  upon  agricultural  lands,  or  author- 
ize the  sale  of  the  imj)r()veme:ils  of  any  boiui  Jide  stttler  to  any 
purchaser.- 6'«!.  V^,  July  9,  1870.    Seepage  116. 

Placers  on  Surveyed  Lands.— ?  ■•331— Where  placer  claims 
are  upon  snrveye  1  lands,  anil  conform  to  legal  subdivisions,  no 
further  surveyor  plat  shall  bo  required,  and  all  placer  mining 


3  I  8  TEXT  OF  U.  S.  STATUTES. 

claims  located  after  the  tenth  day  of  Maj-,  eighteen  hundred  and 
seventy-two,  shall  conform  as  near  as  practicable  with  the  United 
States  system  ot  public  laud  surveys,  and  the  rectangular  sub- 
divisions of  such  surveys,  and  no  such  location  shall  include 
moretha-i  twenty  acres  for  each  individual  claimant ;  but  where 
placer  claims  cannot  be  conformed  to  leeral  subdivisions,  sur^^ey 
and  plat  shall  be  mad^  as  on  unsurveyed  lands  ;  and  where  by 
the  segregation  of  mineral  land  in  any  legal  sub  division  a  quan- 
tity of  agricultural  landless  than  f  rty  acres  remains,  such  frac- 
tional portion  of  agricultural  land  may  be  entered  by  any  party 
qualified  by  law.  for  homestead  or  pre-emption  purposes.— /Sec.  10, 
JlfaylO,  1S7J.    See  page  lie. 

Limitations.—?  233?.— Where  such  person  or  association, 
they  and  their  grantors,  have  held  and  workei  their  claims  for  a 
period  equal  to  the  time  prescribed  by  the  statute  of  limi  ations 
for  mining  claims  of  the  State  or  Territory  where  the  ame  may 
be  .situated,  evidence  of  such  possession  and  working  of  the 
claims  for  such  period  shall  be  sufficient  to  establish  a  right  to  a 
patent  thereto  under  this  chapter,  in  the  absence  of  any  adverse 
|- .  j  claim  ;  but  nothing  in  this  chapter  shall  be  deemed  to 

I  impair  any  lien  which  may  have  attached  in  any  way 
whatever  to  any  mining  claim  or  property  thereto  attached  prior 
to  the  is.suance  of  a  patent.— Sec.  13,  July  9,  1870.  See  pages  141, 
199. 

Placer  Claim  Containing  Lode.— ?  2333.— Where  the  same  per- 
son, association,  or  corporation  is  in  possession  of  a  placer 
claim,  and  also  a  vein  or  lode  included  within  the  boundaries 
thereof,  application  shall  be  made  for  a  f>atent  for  the  placer 
claim,  with  the  statement  that  it  includes  such  vein  or  lode,  and 
in  such  case  a  patent  shall  issue  for  the  placer  claim,  subject  to 
the  provisions  of  this  chapter,  including  such  vein  or  lode,  upon 
the  payment  of  five  dollars  per  acre  for  such  vein  or  lode  claim. 
Placers  $2.50  |  and  twenty-five  feet  of  surface  on  each  side  there- 
per  acre.  'of.  The  remainder  of  the  placer  cl.iim,  or  any 
placer  claim  not  embracing  any  vein  or  lode  claim,  shall  be  paid 
for  at  the  rate  of  two  dollars  and  fifty  cents  per  acre,  together 
with  all  costs  of  proceedings  ;  and  where  a  vein  or  lode,  such  as 
is  described  in  section  twenty-three  hundred  and  twenty,  is 
known  to  exist  within  the  boundaries  of  a  placer  claim,  an  appli- 
cation for  a  patent  for  such  placer  claim  which  does  not  include 
an  application  for  the  vein  or  lode  claim  shall  be  construed  as  a 
conclusive  declaration  that  the  claimant  of  the  placer  claim  has 
no  right  of  possession  of  the  vein  or  lode  claim  ;  but  where  the 
existence  of  a  vein  or  lode  in  a  placer  claim  is  not  known,  a  pat- 
ent for  the  placer  claim  shall  convey  all  valuable  mineral  and 
other  deposits  within  the  boundaries  thereof.— Sec.  11,  May  W, 
1872.    Secz4).  122,  280. 

Deputy-Surveyor  and  Fees.— <  233-1.— The  Surveyor-General  of 
the  United  States  "may  appoint  in  each  land  district  containing 
mineral  lands  as  many  competent  surveyors  as  shall  apply  for 


TEXT  OF  U.  S.  STATUTES.  3  l  9 

appointment  to  survey  mining  claims.  The  expen.«es  of  the  sur- 
vey of  vein  or  lode  claini'*,  and  the  .sm  vey  and  snb-divi.sion  of 
placer  claims  into  .'^mailer  (luantilie.'ithan  cine  hun<ired  and  sixty 
acres,  together  with  the  cost  of  publication  of  notices,  shall  he 
paid  by  the  applicants,  and  they  shall  be  at  liberty  to  obtain  the 
same  at  the  most  reasonable  rates,  and  they  siiall  also  be  at  lib- 
erty to  employ  any  United  States  deiiuty-survevor  to  make  tjie 
sin-voy.  The  Commissioner  of  the  Cieneral  Land  Oflice  shall  also 
Charifps  for  I  have  i)0\ver  to  establish  the  maximum  charges  for 
Publirutioii.  I  surveys  and  publication  of  notices  under  this 
chapter  ;  and,  in  case  of  excessive  charges  for  publication,  he 
may  designate  any  newspaper  published  in  a  land  district  where 
mines  are  situated  for  the  publication  of  mining  notices  in  such 
district,  and  fix  the  rates  to  be  charged  by  such  paper  ;  and,  to 
the  end  that  the  Comm.sssioner  may  be  fully  informed  on  the  sub- 
ject, each  applicant  shall  lile  witli  the  Register  a  sworn  state- 
ment of  all  charges  and  fees  paid  by  such  applicant  for  imbliea- 
tion  and  surveys,  together  with  all  fees  and  money  paid  the 
Register  and  the  Receiver  of  the  Land  Ofticc,  which  statement 
shall  be  transmitted,  with  the  other  papers  in  the  case,  to  the 
Commissioner  of  the  General  Land  Office.— /S'ec.  12,  May  10.  1872. 
Set  iMUje  221. 

AflldAvits  and  Proofs. — i,  2.".:5r). — AH  aflidavits  required  to  be 
made  under  tliis  chapter  may  be  vcrilied  before  any  officer 
authorized  to  administer  oaths  within  the  land  district  where  the 
claims  may  be  situated,  and  all  testimony  and  proofs  may  be 
taken  before  any  such  officer,  and,  when  duly  certified  by  the 
officer  taking  the  same,  shall  have  the  same  force  and  effect  as  if 
taken  liefore  the  Register  and  Receiver  of  the  Land  Office.  In 
Asricultnral  I  cases  of  contest  as  to  the  mineral  or  agricultural 
('oiitest.  I  character  of  land,  the  testimony  and  proofs  may 
be  taken  as  herein  provided  on  personal  notice  of  at  least  ten 
days  to  the  opi losing  party  ;  or  if  such  party  cannot  be  found, 
then  by  publieaiion  of  at  least  once  a  week  for  thirty  days  In  a 
newspaper,  to  be  designated  by  the  Register  of  the  Land  Office 
as  published  nearest  to  the  location  of  such  land  ;  and  the  Regis- 
ter shall  lequire  proof  that  such  notice  has  been  given.— i;«c. 
13,  May  10,  1S72.    See  pp.  226-228. 

Cross  Veins.— 5  2;^3t>. — Where  two  or  more  veins  intersect  or 
cross  each  other,  priority  of  title  shall  govern,  and  such  prior  lo- 
cation shall  be  entitled  to  all  ore  or  mineral  contained  within  the 
space  of  intersection  ;  but  the  subsequent  location  shall  have  the 
right  of  way  through  the  space  of  intersection  for  the  purposes  of 
Veins  IWiitin;;  1  the  convenient  working  of  the  mine.  And  where 
on  tho  I'ip.  I  two  or  more  veins  unite,  the  oldest  or  prior  loca- 
tion shall  take  the  vein  below  the  point  of  union,  including  all 
the  space  of  intersection.— Sw.  14,  May  10,  1872.  See  pages  Sfi-yi. 

Mill-Sites.— 3  23.37.— Where  non-mineral  land  not  contiguous 
to  the  vein  or  lode  is  used  or  occupied  by  the  proprietor  of  sucii 
vein  or  lode  for  mining  or  milling  purpo.scs,  such  non  adjacent 
surface  ground  may  be  embraced  and  included  in  an  application 


320  TEXT  OF  U.  S.  STATUTES. 

for  a  patent  for  such  vein  or  lode,  aud  the  same  may  be  patented 
therewith,  subject  to  the  same  preliminary  requirements  as  to 
survey  and  notice  as  ai'e  applicable  to  veins  or  lodes  ;  but  no  loca- 
tion hereafter  made  of  such  non-adjacent  land  shall  exceed  five 
acres,  and  payment  for  the  same  must  be  made  at  the  same  rate 
as  fixed  by  this  chapter  for  the  superficies  of  the  lode.  The  owner 
of  a  quartz mill  or  reduction  works,  not  owning  a  mine  in  con- 
nection therewith,  may  also  receive  a  patent  for  his  mill-site,  as 
provided  in  this  section.— Sec.  15,  ilfaj/ 10,  1872.    See  page  12S. 

Easements.— 1 23 18.  —As  a  condition  of  sale,  in  the  absence  of 
necessary  legislation  by  Congress,  the  local  legislature  of  any 
State  or  Territory  may  provide  rules  for  working  mines,  involving 
easements,  drainage, "and  other  necessary  means  to  their  com- 
plete development;  and  those  conditions  shall  be  fully  expressed 
in  the  patent.— .yec.  5,  Jul2/  26,  1866.    See  page  — . 

Water  Ricrhts.  Appropriation.— §  2339.— Whenever,  by  pri- 
ority of  possession,  rights  to  the  use  of  water  for  mining,  agri- 
cultural, manufacturing,  or  other  purposes,  have  vested  and 
accrued,  and  the  same  are  recognized  and  acknOi\ lodged  by  the 
local  customs,  laws,  and  the  decisions  of  courts,  the  pos>essors 
an  1  owners  of  such  vested  rights  shall  be  maintained  and  pro- 
tected in  the  same  ;  and  the  right  of  way  for  the  construction  of 
ditches  and  canals  for  the  pui  po-es  herein  specified  is  acknowl- 
edged and  confirmed  ;  but  whenever  any  person,  in  the  con- 
struction of  any  ditch  or  canal,  injures  or  damage-)  the  possession 
of  any  settler  on  the  public  domain,  the  party  committing  sucli 
injury  or  damage  shall  be  liaVjle  to  the  paity  injured  for  such 
injury  or  damage.    Sec.  9,  Jtdy  26,  ]t66.    See  page  109. 

Patents  subject  to  Water  Easements.— g  2310.— All  patents 
granted,  or  pve-emption  or  homesteads  allowed,  shall  be  subject 
to  any  vested  and  accrued  water  rights,  or  rights  to  ditches  and 
reservoirs  used  in  connection  with  such  water  rights,  as  may 
have  been  acquired  under  or  recognized  by  the  pi  eceding  sec- 
tion.—.S'ec.  17,  /uly  9, 1870.    See  page  109. 

Homesteads.— §  2341.— Wherever,  upon  the  lands  heretofore 
designated  as  mineral  lauds,  which  have  been  excluded  from 
.survey  and  sale,  there  have  been  homesteads  made  by  citizens  of 
the  United  States,  or  persons  who  have  declared  their  iniention 
to  become  citizens,  which  homesteads  have  been  made,  im- 
proved, and  used  for  agricultural  purposes,  and  upon  which  there 
have  been  no  valuable  mines  of  gold,  silver,  cinnabar,  or  copper 
discovered,  and  which  are  properly  agricultural  lands,  the  set- 
tlers or  owners  of  such  homesteads  shall  have  a  right  of  preemp- 
tion  thereto,  and  shall  be  entitled  to  purchase  the  same  at  the 
price  of  one  dollar  and  twenty-five  cents  per  acre,  and  in  quantity 
not  to  exceed  one  hundred  and  sixty  acres  ;  or  they  may  avail 
themselves  of  the  provisions  of  chapter  five  of  this  title,  relating 
to  "Homesteads."- .S'ec.  10,  July  26, 1866. 


COAL   LANDS.  321 

Seifrt'Kiitlon  of  Ajrrlcultural  Lnndn.—?  2^5-12.— Upon  the  sur- 
vey of  the  liiiulsdest'rili'.d  in  tht'  preceding  section,  the  Secretary 
of  tlie  Interior  may  cle.signate  and  set  ai)art  sneli  jiortions  of  the 
same  as  are  clearly  agricultural  lands,  which  lands  sliall  there- 
after be  subject  to  jire-emption  and  sale  as  other  public  lands, 
and  be  subject  to  all  the  laws  and  regulations  applicable  to  the 
same.— Sec.  11,  July  26,  18»50.    See  page 

Land  Districts.—  §  2313.— The  President  is  authorized  to 
establish  aiditional  land  districts,  and  to  appoint  the  necessary 
officers  under  existing  laws,  wherever  he  may  deem  the  same 
necessary  for  the  public  convenience  in  executing  the  provisions 
of  this  chapter.— ,Sef.  7,  July  20,  liSOO.    See  page  203. 

Vested  Uights.— 2  2344.— Nothing  contained  in  this  chapter 
shall  be  construed  to  impair,  in  any  way,  rights  or  interests  in 
mining  property  acquired  under  existing  laws  :  nor  to  affect  the 
provisions  of  the  Act  entitled  "  .Vn  .\ct  {granting  to  A.  Sutro  the 
right  of  way  and  othc.  privileges  to  aid  in  the  construction  of  a 
draining  and  exploring  tunnel  to  the  Comstock  Lode,  in  the 
State  of  Nevada,"  approved  .lulv  twenty-five,  eighteen  hundred 
and  sixty-six.— AVc.  17,  July  9,  1870.— *ft-.  16,  May  10,  1872. 

§  2&15.— Excepts  Michigan,  Wisconsin  and  Minnesota.* 

State  and  Railroad  (trants.- ?  23^16.— No  act  passed  at  the 
first  session  of  the  Thirty-eighth  Congress,  granting  lands  to 
States  or  coiporations  to  aid  in  the  construction  of  roads  or  for 
other  purposes,  or  to  extend  the  time  of  grants  made  prior  to  the 
thirtieth  dav  of  January,  eighteen  hundred  and  sixty-tive,  shall 
be  so  construed  as  to  embrace  mineral  lands,  whicli  m  all  cases 
are  reserved  exclusively  to  the  United  States,  unless  otherwise 
specially  jirovided  in  the  Act  or  Acts  making  the  grant.— iJes. 
No.  10,  Jan.  30, 1865. 

♦March  3, 1S83,  22  Stat.  L.  487  Alabama  excepted. 

As  to  lands  ou  Military  Reservations  See  Act  oj  July  5, 
1S84,  23  Stat.  L.  104. 


COAL  LANDS. 

Legal  Subdivlsif.ns.— g  2;M7.— Every  person  above  the  age  of 
twantyone  vears,  who  is  a  citizen  of  the  United  States,  or  vho 
has  declared  his  intention  to  become  such,  or  any  as,>;ociation  of 
persons  severallv  qualified  as  alxive,  shall,  upon  ai)plication  to 
the  Register  of  tlie  proper  land  ollicc,  have  the  right  to  enter,  by 
legal  sub-divisions,  any  quantity  of  vacant  coal  lands  of  the 
United  States  not  otherwise  appropriated  or  reserved  by  compe 

11 


322  COAL  LANDS. 

tent  authoritv,  not  exceeding  one  hundred  and  sixty  acres  to 
160  c- 320  fsuch  individual  person,  or  tliree  hundred  and 
ac^e^s  SIO  to  twenty  acres  to  such  association,  upon  payment  to 
$20  itr.  acre  I  tlie  Receiver  of  not  less  than  ten  dollars  per  acre  for 
such  lands,  where  the  same  shall  be  situated  more  than  fifteen 
mile^  from  anv  completed  railroad,  and  not  less  than  twenty 
dollars  per  acre  for  such  lands  as  shall  be  within  fifteen  miles  of 
such  road.  — .S'ec.  1 ,  March  3,  1873. 

Settlers  Preferred.—?  2248.— Any  person  or  association  of 
pers  >ns  severally  qualifier l,  as  above  provided,  who  have  opeued 
and  improveii,  or  shall  hereafter  open  and  improve,  any  coal 
mine  or  mines  upon  the  public  lands,  and  shall  be  in  actual 
possessio  :  -f  the  same,  shall  be  entitled  to  a  preference-right  of 
entry,  under  the  preceding  section,  of  the  mines  so  opened  and 
improved:  Provided,  That  when  any  assiCiation  of  not  less 
140  Acre  I  than  four  persons,  severally  qualified  as  above  pro- 
Tracts.  I  viiled,  shall  have  expended  not  less  than  five  thou- 
sand dollars  in  working  and  improving  any  such  mine  or  mines, 
such  associirtion  mav  enter  not  exceeding  six  hundred  and  forty  ■ 
acres,  including  such  mining  improvements.— /Sec.  2,  Ibid. 

Land  Office  Proceedinss.— ?  2349.— All  claims  under  the  pre- 
ceding section  must  be  presented  to  the  Register  of  the  proper 
land  district  within  sixty  days  after  the  date  of  actual  possession 
and  the  commencement  of  improvements  on  the  land,  by  the 
filing  of  a  declaratorv  statement  therefor  ;  but  when  the  town- 
shii>  Tjlat  is  not  on  file  at  the  djitc  of  such  improvement,  filing 
must'he  made  within  sixty  days  from  the  receipt  of  such  plat  at 
the  district  office ;  and  where  the  improvements  shall  have  been 
made  prior  to  the  expiration  of  three  months  from  the  third  day 
of  March,  eighteen  hundred  and  seventy-three,  sixty  days  from 
the  expiration  of  such  three  mouths  shall  be  allowed  for  the 
filing  of  a  declarato  y  statement,  and  no  sale  under  the  provis- 
ions of  this  section  shall  be  allowed  until  the  expiration  of  six 
months  from  the  third  day  of  March,  eighteen  hundred  and  sev- 
enty-three.— Acc.  3,  It/id. 

Entry  Limited.— 5  2350.— The  three  preceding  sections  shall 
be  held  to' authorize  only  one  entrj-  by  the  same  person  or  asso- 
ciation of  persons  ;  and  no  association  of  persons  any  member  Of 
which  fhall  have  taken  the  benefit  of  such  sections,  either  as  an 
individual  or  as  a  member  of  any  other  association,  shall  enter 
or  hold  anv  other  lands  under  the  provisions  thereof  ;  and  no 
member  of  any  association  which  shall  have  taken  the  benefit  of 
such  sections  shall  enter  or  hold  any  other  lands  under  their  pro- 
visions ;  and  all  persons  claiming  under  section  twenty-three 
hundred  and  forty-eight  shall  be  required  to  prove  their  respective 
rights  and  pay  for  the  lands  filed  upon  within  one  year  from  the 
time  prescribed  for  filing  their  respective  claims;  and  upon 
failure  to  file  the  proper  notice,  or  to  pay  for  the  land  within  the 
required  period,  the  same  shall  be  subject  to  entry  by  any  other 
qualified  applicant.— -Sec.  4,  IIM. 


TIMBEK  ACT.  323 

C'onlllcliiiff  (iaiiiis.— ?  23r>l.— In  case  of  coullicting  claims 
upon  coiil  lanils  wliere  the  imi>rovemc!its  shall  be  commenced, 
atler  the  the  third  day  of  March,  eighteen  hundred  and  seventy- 
lliTee,  priority  of  ins^ession  and  improvement,  foUoweil  by  proper 
lilinj?  and  continue  1  good  faith,  sliall  determine  the  i>refercnce- 
right  to  purchase.  An  1  also  where  improvements  have  already 
been  made  prior  to  the  third  day  of  March,  eighteen  hundred 
and  seventv-three,  divisi<ui  of  the  land  claimed  may  be  made  by 
legal  subdivisions,  to  include,  as  uear  as  may  be,  the  valuable 
improvements  of  the  resiicctive  panics.  The  Commissioner  of 
the  (leneral  J.and  Olfice  is  authorized  to  issue  all  needful  rules 
and  regulations  for  carrying  inti  efl'ect  the  provisions  of  this  and 
the  four  preceding  sections.— 5ec  .'>,  Ibid. 

Vesti'tl  Rights.  Lodes  and  Placers  Excepted.—?  23.52.— Noth- 
ing in  the  live  preceding  sections  shall  be  con-Jtrued  to  destroy  or 
impair  any  rights  which  may  have  attached  prior  to  the  third 
dav  of  Mar<h,  eighteen  hundred  and  seventy-three,  or  to  author- 
ize" the  sale  of  lands  valuable  for  mines  of  gold,  silver,  or  copper. 
Sec.  6,  Ibid. 

The  proceedings  to  euter  coal  lauds  under  the  above 
sectious  are  regulated  by  Circular  of  the  General  Land 
Office  of  July  31,  1882. 


TIMBER  ACT. 


Chapter  160. —An  Act  authorizing  the  citizens  of  Colorado,  Ne- 
vada and  the  Territories  to  fell  and  remove  tim- 
ber on  the  public  domain  for  mining  and  domes- 
tic purposes. 
Timber  Free  to  Miners.— Be  it  emicted  by  the  Senate  and  House 
of  Reiyresentatiiv.t  of  (he  United  Stales  of  Atnerica  in  Confjrtsx  as- 
xembled.  That  all  citizens  of  the  United  States  and  other  persons, 
1x)na  fldi'  residents  of  the  f^tate  of  Colorado,  or  Nevada,   or  cither 
of  the  Territories  of  New  Mexico.  Arizona,  Utah,   Wyoming,  Da- 
kota, Idaho,  or  Montana,  and  all  other  mineral  districts  of  the 
United  States,  shall  be,  and  are  hereby,  authorized  and  permitted 
to     fell    aud     remove,     for     building,     agricultural,    mining, 
or  other  domestic  purposes,  any  timber  or  other  trees  growing  or 
being  on  the  public  lands,  said  lands  being  mineral,  and  not  sub- 
ject to  ent^^'  under  existing  laws  of  the  United  Slates,  except  for 
mineral  entry,  in  either  of  said  States,  Territories,  or  districts  of 
which  such  citizens  or  persons  may  be  at  the  time  boiui  Jide  resi- 
dents, subject  to  such  rules  and  regulations  as  the  Secretarj'  of 


324        TEXT  OP  PRESENT  STATE  STATUTES. 

the  Interior  may  prescribe  for  the  protection  of  the  timber  and  of 
the  undergrowth  growing  upon  such  lands,  and  for  other  pur- 
poses :  Prm'ided,  the  provisions  of  this  act  shall  not  extend  to 
railroad  corporations. 

Land  Oilice  Inspection. — ?  2. — That  it  shall  be  the  duty  of  the 
Register  and  Receiver  of  any  local  Land  Office  in  who.se  district 
any  mineral  land  may  be  situated  to  ascertain  from  time  to  time 
whether  any  timber  is  being  cut  or  used  upon  any  .such  lands,  ex- 
cept for  the  purposes  authorized  by  this  act,  within  their  respect- 
ive land  districts;  and,  if  so,  they" shall  immediately  notify  the 
Commissioner  of  the  General  Ijand  Otiice  of  tliat  fact ;  and  all 
necessary  expenses  incurred  in  making  such  proper  examinations 
shall  be  paid  and  allowed  such  Register  and  Receiver  in  making 
up  their  next  quarterly  accounts. 

N  Penalty.—?  3.— Any  person  or  persons  who  shall  violate  the 
provisions  of  this  act,  or  any  rules  and  regulations  in  pursuance 
thereof  made  by  the  Secretary  of  the  Interior,  shall  be  deemed 
guilty  of  a  misdemeanor,  and^  upon  conviction,  shall  be  fined  in 
any  sum  not  exceeding  five  hundred  dollars,  and  to  which  may 
be  added  imprisonment  for  anv  term  not  exceeding  six  months. 
—77.  8.  Stat.,  Vol.  20,  jxtge  88.  See  U.  8.  v.  WiUiarm,  12  Pac.  852. 
Approved  June  3, 1878. 


TEXT  OF  PRESENT  STATE  STATUTES. 


GENERAL  STATUTES,    CHAPTER   LXXIV   ENTITLED    "MINES." 
DIVI.SION  1.      PLACER  CLAIMS. 

Location  and  Hecord  of  Placers.— |  2.385.— The  discoverer 
of  a  placer  claim  shall,  within  thirty  days  from  the  date  of 
discover.v,  record  his  claim  in  the  office  of  the  recorder  of 
the  county  in  which  said  claim  is  situated,  )iy  a  location 
certificate,  which  shall  contain  :  First,  the  name  of  the 
claim,  designating  it  as  a  placer  claim  ;  second,  the  name 
of  the  locator;  third,  the  date  of  location  ;  fourth,  the  num- 
ber of  acres  or  feet  claimed  ;  and  fifth,  a  description  of  the 
claim,  by  such  reference  to  natural  objects  or  permanent 
jnonuments  as  shall  identify  the  claim.  Before  filing  such 
location  certificate  the  discoverer  shall  locate  his  claim: 
Firsi,  by  posting  upon  such  claim  a  plain  sign  or  notice, 
containing  the  name  of  the  claim,  the  name  of  the  locator, 
the  date  of  discovery,  and  the  number  of  acres  or  feet 
claimed;  second,  by  marking  the  surface  boundaries  with 
substantial  posts,  and  sunk  into  the  ground,  to-wit:  one 
at  each  angle  of  the  ciaim  ,—See p.  117. 


TEXT  OF  PRESENT  STATE  STATUTES.        325 

Aniiiiiil  Labor.  ForlVilurc— ?  2386.  On  each  placer  claim 
of  ono  huiKlred  and  si.\Ly  acres  or  more,  heretofore  or 
hereafter  located,  and  until  a  patent  has  l»ecn  i.ssued 
therefor,  not  less  than  one  liundred  dollars'  worth  of 
labor  shall  be  performed  or  nnprovements  made  bj'  the 
llrst  day  of  Aujinst,  1879.  and  by  the  rirst  day  of  August 
of  each' year  thoreaftor.  On  all  placer  claims  contain- 
ing less  than  one  hundred  and  sixty  acres,  the  expend- 
iture durini;  each  year  shall  be  such  proportion  of  one  hun- 
tlred  dollars  as  the  number  of  acres  b-^ars  to  one  hundred 
and  sixty.  On  all  placer  claims  containin-;  less  than  twenty 
acres,  tlie  expenditure  dnrini;  each  year  shall  not  be  less 
than  twelve  dolkirs  ;  butwiien  two  or  more  claims  lie  con- 
tiguous, and  are  owned  by  the  same  person,  tiie  expendi- 
ture herel)y  reciuind  for  each  claim  may  be  made  on  any 
one  claim  :"  and  upon  a  failure  to  comply  with  the.se  condi- 
tions, the  claim  or  claims  upon  which  such  lai  lure  occurred 
shall  be  open  to  re-location  in  the  same  manner  is  if  no  lo- 
cation of  the  same  had  ever  l)een  made  :  Hrnmdal.  that  the 
original  locators,  their  heirs  assigns  or  legal  representa- 
tives, have  not  resumed  work  upon  the  claim  after  failure 
and  belbre  such  location  :  Frophlal.  the  aforesaid  expendi- 
tures may  be  made  in  building  or  repairing  ditches  to  con- 
duct water  upon  such  ground,  or  i!i  making  other  raining 
improvements  necessary  for  the  w^orking  of  sucli  claim. 
Upon  the  failure  of  any  one  of  several  co-owners  to  con- 
tribute his  proportion  of  the  expenditures  lequired  hereby^ 
the  co-owners  who  have  performed  the  labor  or  made  tlie 
Improvements  may,  at  the  expiration  of  tlie  year,  to- 
wit:  the  first  of  August,  US79,  for  the  locations  heretolore 
made,  and  one  year  from  the  date  of  locations  hereafter 
made,  give  such  delinquent  co-owner  personal  notice  in 
writing,  or,  if  lie  be  a  non-resident  of  the  State,  a  notice  by 
publication  in  the  newspaper  published  nearest  the  claim, 
for  at  least  once  a  week  for  ninety  days,  and  mailing  him  a 
copv  of  such  newspaper,  if  his  address  be  known,  and  if  at 
the  expiration  of  ninety  days  after  such  notice  in  writing, 
or  after  the  first  publication  of  such  notice,  such  delinquent 
should  (ail  or  refuse  to  contribute  his  ))roportion  of  the  ex- 
penditure required  by  tliis  action,  his  interest  in  the  claim 
shall  become  tiie  property  of  liis  co-owners  who  have  made 
tlie  required  expenditures.— Ay  p^>.  125,  124. 

DIVISION    II.      LODE   CL.\I.MS. 

lientrtli.  1500  Feet.— §  2597.— The  length  of  any  lode  claim 
hereafter  located  may  etiual  but  not  exceed  fifteen  liundred 
feet  along  the  vein.— Sec.  1,  February  13, 1871.    See  jkifie  23. 

Width  160  or  300  Feet.—?  2398.— The  width  oflode  claims 
hereafter  located  in  Gilpin,  Clear  Creek,  Boulder  and  Sum- 
mit counties,  shall  be  seventy-five  feet  on  each  side  of  the 


326       TEXT  OF  PRESENT  STATE  STATUTES. 

center  of  the  vein  oi-  crevice  ;  and  in  all  other  counties  the 
width  of  the  same  shall  be  one  hundred  and  fifty  feet  on 
County  I  each  side  of  the  center  of  the  vein  or  crevice  :  Pro- 
Option.  !  vided,  that  hereafter  any  county  may,  at  any  gen- 
eral election,  determine  upon  a  greater  width  not  exceeding 
three  hundred  feet  on  each  side  of  the  center  of  the  vein  or 
lode,  by  a  majority  of  the  legal  votes  cast  at  said  election, 
and  any  county  by  such  vote  at  such  election  may  deter- 
mine upon  a  less  width  than  above  specified.— 5ec.  2,  Id.  See 
page  24. 

Requisites  of  Location  Cerliflcatc— ?  2399  —The  discoverer 
of  a  lode  shall,  within  three  months  from  the  date  of  discov- 
ery, record  his  claim  in  the  office  of  the  Recorder  of  the 
county  in  which  such  lode  is  situated,  by  a  location  certifi- 
cate which  shall  contain  : 

First— The  name  of  the  lode. 

Sec07id— The  name  of  the  locator. 

Thi  d— The  date  of  location. 

Fourth— The  number  of  feet  in  length  claimed  on  each 
side  of  the  center  of  discovery  shaft. 

Fifth— The  general  course  of  the  lode  as  near  as  may  be. 
—Sec.  3,  Id.   See  p.  45. 

Void  Location  Certificate.— §2400 — Any  location  certificate 
of  a  lode  claim  which  shall  not  contain  the  name  of  the  lode,  the 
name  of  the  locator,  the  date  of  location,  the  number  of  lineal 
feet  claimed  on  each  side  of  the  dLscoverj'  shaft,  the  general 
course  of  the  lode,  and  such  de-cription  as  .shall  identify  the 
claim  with  reasonable  certainty,  shall  be  void.— Sec.  4,  Feb.  13, 1874. 
See  ixige  45. 

DiscoTery  Shaft  and  Staking. — ?  2401. — Before  filing  such  lo- 
cation certificate  the  discoverer  shall  locate  his  claim  by  : 

First — Sinking  a  discovery  shaft  upon  the  lode  to  the  depth 
of  at  least  te  i  leet  from  the  lowest  part  of  the  rim  of  such  shaft 
at  the  surface,  or  deeper,  if  necessary  to  show  a  well-defined 
crevice. 

Second— "By  posting  at  the  point  of  di-covery  on  the  surface 
a  plain  sign  or  notice,  containing  the  name  of  the  lode,  the  name 
of  the  locator,  and  the  daie  of  discovery. 

Third— By  marking  the  surface  boundaries  of  the  claim. — 
Sec.  5,  Ftb.  13,  1874.    See  page  26. 

Six  Boundary  Stakes.—?  2402.— Such  surface  boundaries  shall 
be  marked  by  six  substantial  posts  hewed  or  marked  on  the  side 
or  sides  which  are  in  toward  the  claim,  and  sunk  in  the  ground, 
to-wit :  one  at  each  corner  and  one  ai  the  center  of  each  side  line. 
Where  it  is  practically  impossible  on  account  of  bed  rock  to  sink 

Note.— The  Act  approved  February  13,  1874,  did  not  take  ef- 
fect till  June  15,  1874,  which  date  was  in  the  original  Acts  erro- 
neously printed  June  1st. 


TEXT  OK  PRESENT  STATE  STATUTES.        327 

Prer i|»itouH  I  huch  posts,  ihey  miiy  be  placed  in  a  pile  of  stones, 
(•roiiiid.  I  and  wliere  in  mnrkiiig  the  siirlace  )<oundaries  of  a 
claim  any  one  or  more  of  such  posts  shall  fall  by  right  upon  pre- 
cipitous ground,  where  the  proper  iilacing  of  it  is  inii)racticable 
or  dangerous  to  life  or  limb,  it  shall  be  leg»il  and  valid  to  i>lace 
any  such  jwst  at  the  nearest  practicable  point,  suitably  marked 
to  designate  the  proper  place,— Sec.  il,  Ftb.  i:'.,  IsTl.  Sec.  \,Feb.2, 
187G.    iS't  e  page  26. 

Open  Cuts  and  Tunnel  IMscoverit's.— ^  '2^03  —Any  open  cut, 
cross-cut  or  tunnel  which  shall  cut  a  lode  at  the  dejith  ot  ten  feet 
below  the  surface,  shall  hold  such  lode,  tlJC  same  as  if  a  discovery 
shaft  were  sunk  thereon,  or  an  adit  of  at  least  ten  feet  in  along 
the  lode  from  ihe  point  where  the  lode  may  be  in  any  manner 
discovered,  shall  be  equivalent  to  a  discovery  shaft.— iS'ec.  7,  Fvb. 
13,  1874.    See  page  35. 

60  Days  to  Sink  a  Shaft.— J  24  4.— The  discoverer  shall  have 
sixty  days  from  the  time  of  uncovering  or  disclosing  a  lode  to  sink 
a  discovery  shaft  thereon.— &c.  S,  F'eb.  13,  IS74.    See  page  27. 

Side  Lines.  Top  or  Apex.— ^  ^05  —The  location  or  location 
certificate  of  any  lode  claim  shall  be  construed  to  include  all 
surface  ground  withni  the  surface  lines  thereof,  and  all  lodes 
and  ledges  throughout  their  entire  depth,  the  top  or  apex  of 
which  lie  inside  of  such  lines  extended  downward,  vertically, 
with  such  parts  of  all  lodes  or  ledges  as  contiinie  by  dip  beyond 
the  .sidelines  of  the  claim,  but  shall  not  include  any  portion  of 
such  lodes  or  ledges  beyond  the  end-jines  of  the  claim  or  the 
end-lines  continued,  whether  by  dip  or  otherwise,  or  beyond  the 
side-lines  in  anv  other  manner  than  by  the  dip  of  the  lode.— 6fc. 
9,  Feb'y  13,  1874.    See  page  So. 

End-Lines.— 5,  2406.— If  the  top  or  apex  of  a  lode  in  its  longi- 
tudinal course  extends  beyond  the  exterior  lines  of  the  claim  at 
any  point  on  the  surface,  or  as  extended  vertically  downward, 
such  lode  may  not  be  lollowed  in  its  longitudinal  course  beyond 
the  point  where  it  is  iutersected  by  the  exterior  lines.— <Sec.  10, 
Ftb'y  13, 1874:    See  page  145. 

Kasements.  Higlit  of  Way.— 5,  2407.— All  mining  claims  now 
located,  or  which  may  be  hereafter  located,  shall  be  subject  to 
the  right  of  way  of  any  ditch  or  Hume  for  mining  purposes,  or  of 
any  tram-wav  or  pack-trail,  whether  now  in  use  or  which  may  be 
hereafter  laid  out  atro.'-s  any  such  location  ;  Provided  always, 
that  such  right  of  way  shall  not  beexerei.sed  again.stany  location 
duly  made  and  recorded,  and  not  abandoned  i)rior  to  the  estab- 
lishment of  the  ditch,  Hume,  tramway  or  pack-trail,  without 
consent  of  the  owner,  except  by  condemnation,  as  in  ca.se  of  land 
Parol  I  taken  for  i>ublic  highways.  Parol  ccnisent  to  the  loca- 
fonsent.  |  tion  of  any  such  easement  accompanied  by  the  com- 
pletion of  the  same  over  the  claim  shall  be  sutticient  without 


328        TEXT  OF  PRESENT  STATE  STATUTES. 

writings  ;  And  i^rovidcd  further ,  that  such  ditch  or  flume  shall  be 
so  constructed  that  the  water  from  such  ditch  or  flume  shall  not 
injure  vested  rights  by  flooding  or  otherwise.— >S'cc.  11,  Feb.  13, 
1874.    See  pp.  109;  111. 

Snrface  ISistils.— §  2108.— When  the  right  to  mine  is  in  any 
case  separate  from  the  ownership  or  right  of  occupancy  to  the 
surface,  the  owner  or  rightlul  occupant  of  the  surface  may  de- 
mand satisfactory  security  from  the  miner,  and  if  it  be  refused 
may  enjoin  such  "miner  from  working  until  such  security  is  given. 
The  order  for  injunction  shall  fix  the  amount  of  bond.— Sec.  12, 
Feb.  13,  1874.    IS  e  p(XQe  180. 

Relocation  of  his  own  Claim  by  tlie  Ownpr.— ?  2409. — If  at 
any  time  the  locator  of  any  mining  claim  heretofore  or  hereafter 
located,  or  his  assigns,  shall  apprehend  that  his  original  certi- 
ficate was  defective,  erroneous,  or  that  the  requirements  of  the 
law  had  not  been  complied  with  tefore  filing,  or  shall  be  desir- 
ous of  changing  his  surface  boundaries,  or  of  taking  in  any  part 
of  an  overlapping  claim  which  has  been  abandoned,  or  in  ease 
the  original  certificate  was  made  prior  to  the  passage  of  this  law, 
and  he  shall  be  desirous  of  securing  the  benefits  of  this  Act,  such 
locator,  or  his  assigns,  may  file  an  additional  certificate,  subject 
to  the  provisions  of  this  Act ;  Provided,  that  such  relocation 
does  not  interfere  with  the  existing  rights  of  others  at  ihe  time 
of  such  relocation,  and  no  such  relocation  or  other  record  there- 
of shall  preclude  the  claimant  or  claimants  from  proving  any 
such  title  or  titles  as  he  or  they  may  have  held  under  previous 
location.— Sfc  13,  Feb.  13,  1874.    See  page  70. 

Record  Proof  of  Annual  Labor.—?  2410.— Within  six  months 
after  any  set  time  or  annual  period,  allowed  for  the  performance 
of  labor  or  making  improvements,  upon  any  lode  claim  or  placer 
claim*  the  person  on  who.se  behalf  such  outlay  was  made,  or 
.some  person  for  him,  may*  make  and  record  in  the  office  of  t.ne 
recorder  of  the  county  wherein  such  claim  is  situate  an  afiBdavit 
in  substance  as  follows  : 

State  of  Coi>orado,  \ 
County,       ;  ^^• 

Before  me,  the  subscriber,  personally  appeared 

who,  being  duly  sworn,  saith,  that  at  least dollars'  worth  of 

work  or  improvements   were  performed  or  made  upon  (here 

descrit'C  claim  or  part  of  claim.)  situate  in mining  district, 

County  of ,  State  of  Colorado,  befiveen  the dciy  of 

,  A.  D. and  the day  of A.   r>. * 

Such  expenditure  was  made  by  or  at  the  expense  of 

owners  of  said  claim,  for  the  purpose  of  complying  with  the  law 
and  holding  said  claim. 

(Jurat.)  (Signature.) 


TEXT  OF  PRESENT  STATE  STATUTES.        329 

And  such  affidavit,  when  so  recorded,  shall  be  prima  facie 
evidence  of  the  performance  of  such  labor  or  the  making  of  such 
improvements.* 

Kolocntion  of  Abandoned  ('lainis.— ?  JHl.— The  relocation 
of  abandoned  lode  claims  shall  be  by  sinking  a  new  discovery 
.shaft  and  lixing  now  boundaries  in  the  same  manner  as  if  it 
were  the  lucaiiou  of  a  new  claim  ;  or  the  relocator  may  sink  the 
original  discovery  shaft  ten  feet  deeper  tha'i  it  was  at  the  time 
o£  abandonment,  and  erect  new  or  adopt  the  old  boundaries, 
re'  owing  the  p  >stR  if  removed  or  destroyed.  In  cither  case  a  new 
location  stake  shall  be  erected.  In  any  ca.se,  whether  the  whole 
or  part  of  an  abandoned  claim  is  takei,  the  location  certificate 
may  state  thnt  the  whole  or  any  part  of  the  new  location  is 
located  as  abandoned  property.— AVf.  16.  Feb.  18,  1874.  See  page 
68. 

One  Record  for  Each  Claim.—?  2112.— No  location  certifi- 
cate .shall  claim  more  than  one  location,  whether  the  location 
be  made  by  one  or  several  Incators.  And  if  it  jiurport  to  claim 
more  than  one  location  it  shall  be  ab.solutely  void,  except  as  to 
the  first  locnti^ '11  therein  described,  ami  if  they  are  described 
together,  or  so  that  it  canii  it  be  told  which  locati  n  is  first  de- 
scribed, the  cei  titicate  shall  be  void  as  to  all.— .Sec  17,  Feb.  13, 
1 874. — See  page  45. 

Miscellaneous  Scctio  :?. — The  above  printed  sec- 
tions constitute  the  sections  properly  incorporated  into 
the  chapter  of  the  General  Statutes  (Eevision  of  1883)  en- 
titled mines.    Sections   2387-2396  printed  in  the  chapter 

*  Note.— Sec.  15  of  Act  of  Feb.  13,  1874.  amended  March  31, 
1887,  Acts  of  IS*"?,  page  312.  The  .'Section  before  amendment  lead  : 
Within  si.x  months  after  any  set  time  crauiinal  period  allowed 
for  the  peri'ormance  of  labor,  or  making  improvements  upon 
any  lode  claim,  the  per.-on  on  whose  behalf  such  outlay  was 
made,  or  some  person  for  him,  shall  make  and  record  an  atHdavit 
in  substance  as  follows : 

Static  of  Colou.\uo,  i 

Coimty.        f'^^- 


Before  me,  the  subscriber,  personally  appeared 


who,  being  duly  sworn,  saith  that  at  least dollars'   worth 

of  work  or  improvements  were  performed  or  made  upon  (hero 

describe  claim  or  part  of  claim)  situate  in mining  district, 

county  of .State  of  Colorado.    Such  expenditure  was  made 

by  or  at  the  expense  of ,  owners  of  said  claim,  for  the 

purpose  of  liolding  said  claim. 

(Jurat)  Signature. 

And  such  signature  shall  be  prima  facie  evidence  of  the 
performance  of  such  labor. 


330   TEXT  OF  PRESENT  STATE  STATUTES. 

are  almost  entirely  obsolete.  Sections  2413-2424  refer  to 
inspection,  survey,  drainage  and  other  matters  only  inci- 
dental. All  the  sections  printed  in  the  chapter  are  herein- 
before either  printed  in  full  or  referred  to  under  their 
proper  headings. 

There  has  never  been  a  codification  of  the  mining 
statutes  of  either  Territory  or  State,  but  the  act  of  1874  was 
an  approach  to  it  and  contains,  with  its  amendments,  all 
the  statutory  regulations  concerning  discovery,  location, 
record  and  annual  labor.  The  only  local  Act  is  one  of  1874 
(Acts,  p.  87,)  referring  to  Eureka  and  Las  Animas  mining 
districts. 

All  the  statutes  bearing  on  tho  subject  of  mines  in 
addition  to  those  above  printed  in  full  I  have  endeavored 
to  collate  as  follows : 


INDEX  OF  STATE  STATUTES. 

COXKTITUTION— 1S76. 

Art.  XVI.  Sec.  1— Commissioner  of  Mines See  page  200 

Art.  XVI.  Sec.  3— Drainage "          08 

Art.  XVI.  Sec.  7— Right  of  Way.    Easem<  nt "  109,Ui 

Art.  XVI.  Sec.  4— School  of  Mines "        202 

Art.  X.      Sec.  3— Taxation "         139 

Art.  XVI.  Pec.  2— Ventilation.     Escapes.     Employ- 
ment of  Chil-lrcn "      ^181 

CODE— 1887. 

Sec.  363— District  Rules See  page     3 

"    267, 274— Ejectment  "         184 

"    148- Injunction "         1^0 

"    159-160— Injunction-Jumping  Case "        183 

"    SiW— Inspection  "        197 

"    258— Measure  of  Damages "        187 

"    364— Survey "        '97 

GENERAL   STATUTES— 1861-1883. 

Sec.  26.«;>— Abandonment.    (Obsolete! See  p&go   — 

"    423— Adverse  Claim,  costs  on "        30S 

"    2396, 2677~District  Rules  and  Records "            3 

"    2416-24J4— Drainage "         108 

"    486-487— Injunction  not  to  issue  out  of  County 

Court  "         197 

"    2391-239:— Interference  of  claims "          82 

"    Wl4-2415-Jumping  Act "  183,195 

•'    2189— Limitations,  Statute  of "         1S9 

"    1887-1890— Miner,' Courts.    (Obsolete) 

'I    J172~Miner's  Inch 

"    2!37,214S— Miner's  Lien •    "         1^1 

"    320-3.'5— Mining  Corporations "         169 


332       INDEX  OF  STATE  STATUTES. 

Sec.  26SS-2691— Mining  under  iraproTcments.    (Ob- 
solete)   Seepage 

"    2388 — Mining  under  improvements.    (See  Sec. 

240S) "  130 

•'    2506-2512— Ore  buyers "  180 

"    2513— Ore  stealing "  '82 

"    779,  780,  886,  887,  897,  910,  2511-2513— Penal  Pro- 
visions    "  180 

"     2676-2687— Possessory  Titles "       9,  U 

•'    2387.  2394— Right  of  Way "  lU 

"    3098-3116— .School  of  Mines "  202 

"    2395— Soldiers'  Claims.    (Obsolete) "  U 

"     2113— Survey  and  Inspection  "  197 

"    2138— Surveyor's  Lien "  144 

"    2393— Tailings  "  l-'5 

'•    2389-2390— Tunnel  Sites  "  I'l 

"    3171,  3472— Weights  and  Measures 

ACT.S  OF  1885. 

Page  134— Coal  Mines See  page  184 

"      276— Malicious  Mischief "  183 

ACTS  OF  1887. 

Page  45,  222— Coal  Mines  See  page  184 

"     270-Forcible  Entry "  186 

"     278— Giant  Powler  Act "  278 

"     340— Mine  Tax  Act "  139 


TERMS  OF  COl  RT.-U.  S.  CIRCUIT  AM)  DISTRICT 

COURTS. 


Son.  Samuel  F.  Miller,  Circuit  Justice. 

Hon.  David  J.  Brewer,  Circuit  Judge. 

Hon.  Moses  UaUell,  District  Judfe. 

Henry  W.  Hobson,  District  Attorney. 

Zejyh  T.  Hill,  Marshal. 

William  A.    U'lUard,  Clerk. 

The  United  States  Circuit  and  District  Courts  sit  at 
Denver  on  the  first  Tuesday  of  May  and  ou  the  first  Tues- 
day of  November. 

At  Pueblo  ou  the  first  Tuesday  of  April. 

At  Del  Norte  on  the  first  Tuesday  of  August. 


SUPRF.^IE  COURT. 


Hon.  William  E.  Beek,  C.  J. 

Hon.  .Toseph  C.  Helm,  J. 

Hon.  Samue}  H.  Elbert,  J. 

Hon.  Alvin  Marsh,  Attorney  Geueral. 

James  A.  Miller,  Clerk. 

Terms. — First  Tuesday  in  April  and  first  Tuesday  in 
December,  at  Denver. 


334 


TERMS  OF  COURT. 


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COUNTY  COURTS. 


Each  six  terms  beginning  on  first  Mon- 
days of  January.  March,  May,  Julj',  Septem- 
ber and  November. 


Arapahoe, 

Cliaffeo, 

El  Paso, 

Ijiiko, 

Park, 

Rio  Grande, 

Sagnaclie, 

Summit, 

Uiicompahgro 

Weld. 

1        Four  terms,  commencing  on  second  Mon- 
Costilla.  >  days  of  March,  June,  September,  and  De- 

J  cember. 

^        Four  terms,  commencing  on   the   third 
Conejos.  j- Mondays  of  .^larch,   June,  September  and 

J  December. 
Las  Animas,    ")        Four    terms,   commencing  on   the    first 

V  Mondays  of  January,  April,  July  and  Oc- 
Logan.  J  tober. 

All  other  counties  have  four  terms,  beginning  on  the 
first  Mondays  of  March,  June,  September  and  December. 

The  jurisdiction  of  this  Court  is  confined  to  $2000.  It 
cannot  issue  an  injunction  in  any  mining  case. 

The  County  Courts  are  supposed  to  commence  their 
terms  at  set  periods,  holding  four  or  more  each  year. 
But  as  suits  are  now  commenced  without  regard  to  return 
days,  the  return  days  of  this  Court  are  of  small  importance. 
Being  paid  in  fees  and  not  by  salary  and  deprived  of  an  at- 
tending panel  of  jurors  these  Courts  become  rather  an  of- 
fice than  a  court  and  are  able  to  command  respect  only  as 
the  personal  character  of  the  judge  may  suffice  to  relieve 
the  effect  of  these  inherent  defects  iu  their  constitution. 


APPENDIX.-LASD  DISTRICT  CHVNtJES. 


By  circular  of  Jan.  7,  1888,  the  General  Land  Office 
publishes  the  following  Land  District  changes,  dating  from 
January  4 : 

1.  The  boundarie.i  of  the  Lake  City  Land  District  shall  be 
0.1  follows:  Commencing  at  a  point  where  the  line  between 
townships  8  and  9  south  of  the  sixth  principal  meridian  inter- 
sects the  western  boundary  of  the  State  ;  thence  E.  along  said 
line  to  the  N.  E.  cor.  T.  9  S.,  R.  97  W.,  thence  S.  to  the  line  be- 
tween townships  11  and  12  »outh,  thence  E.  along  said  line  to  the 
N.  E.  cor.  of  T.  12  S  ,  R.  91  W. ;  thence  S.  along  said  line  to  the 
third  connection  line  south  ;  thence  W.  along  said  connection 
line  to  the  line  between  ranges  6  and  7  west  of  the  New  Mexico 
principal  meridian ;  thence  south  along  said  range  line  to  the 
K.  E.cor.  of  T.  11.  N.  R.  7  W.,  thence  W.  along  the  line  between 
townships  11  and  42  north  to  the  western  boundary  of  the  .State  ; 
thence  north  with  said  boundary  line  to  the  place  of  beginuing. 

2.  Tranter  from  the  Lake  City  to  the  Gunnison  Land  Dis- 
trict all  of  the  townships  in  ranges  1,  2  and  3  we-^t  of  the  New 
Mexico  principal  meridian  and  north  of  the  line  between  town- 
ships 12  and  43  north  ;  all  of  the  townships  in  ranges  4,  5  and  & 
west  of  said  meridian  and  north  of  the  line  between  townships 
41  and  42  north. 

3.  Transfer  from  the  Lake  City  to  the  Del  Norte  Land  Dis- 
trict all  the  townships  and  parts  of  townships  in  ranges  1,  2  and 
3  west  of  tlie  New  Mexico  principal  meridian  south  of  the  line 
between  townships  42  and  43  north,  and  all  of  the  townships  and 
parts  of  townships  in  ranges  4,  5  and  G  west  of  said  meridian, 
south  of  the  line  between  townships  41  and  42. 

4.  Remove  the  Land  Office  novj  located  at  Lake  City  to 
Montrose,  and  the  Lake  City  Land  District  shall  be  hereafter 
known  as  the  Montrose  Land  District. 


GLOSSARY  OF  MINING  TERMS. 


Accquia.     A  ditch.    Spanish. 

Adit.  A  horizontal  drift  or  other  passage  used  as  an 
opening  or  drtlin  to  a  mine ;  applied  to  no  level  except  one 
openiiig  on  the  surface.     Latin. 

Adventurer.     A  shareholder.     English. 

Alligator.     A  rock  breaker  operating  by  jaws. 

Alluvinm.  The  sediment  of  streams  and  floods. 
Latin. 

Amalgam.  The  mechanical  combination  of  quick- 
silver with  gold  or  silver. 

Apex.     The  top  of  a  vein.     Latin. 

Arastra.  A  circular  mill  for  grinding  quartz  by 
trituration  between  stones  attached  loosely  to  cross  arms. 
Sp. 

Ai'ch.  A  part  of  the  gangue  left  standing  for  support. 
Cornish. 

Argentiferous.    Silver-bearing.    Lat. 

Ascension  Theory.  That  referring  the  <illing  of 
fissures  to  matter  from  below.     Von  Cot'a,  71. 

Assay.  A  test  of  the  mineral  contained  in  a  larger 
mass  by  extracting  and  weighing  the  product  of  a  sample. 
8m  p.  201. 

Assessment  "Work.  The  annual  labor  required  to 
hold  a  claim.    See  p.  52. 

At  tie.    Waste  Rock.     Cornish. 

Auriferous.    Gold-bearing.    Lat. 


340  GLOSSARY. 

Back.     The  roof  of  a  drift,  stope  or  other  working. 

Bal.     A  mine.     Corn. 

Bank.     The  surface  at  the  pit's  mouth.     Eng. 

Banksman.  The  man  at  the  shaft  mouth  who  han- 
dles the  bucket.     Corn. 

Bar  Diggings.     Gold  washing  on  bars. 

Barrier.  Posts  of  unworked  gangue  or  coal  left  to 
prevent  drainage  from  mine  to  mine. 

Base  Bullion.  Pig  lead  containing  its  gold  and  sil- 
ver unseparated. 

Base  MetalK.  All  metals  except  gold,  silver,  mercury 
and  the  platinum  group,  which  are  termed  noble  metals. 

Bed.     A  horizontal  seam  or  deposit  of  ore. 

Bed  Hock.  The  solid  rock  underlying  the  gravel, 
slide,  or  other  loose  earth. 

Black  Jack.     A  dark  variety  of  zink  blende. 

Blende.     A  sulphide  of  ziuk. 

Blossom.  Decomposed  outcrop  of  a  vein.  Gossan. 
Iron  hat. 

Blow-ouf.     A  spreading  out-crop. 

Bonanza.  Fair  weather  at  sea ;  a  large  body  of  pay- 
ing ore.     Sp. 

Booming.  A  kind  of  placer  mining  where  the  wa- 
ter is  accumulated  in  a  dam  and  let  out  at  intervals,  so  as 
to  utilize  its  cutting  power  in  the  form  of  a  torrent. 

Boom  Ditch.  (1)  The  ditch  from  the  dam  used  in 
booming.  (2)  A  slight  channel  cut  down  a  declivity  into 
which  islet  a  sudden  head  of  water  intended  to  cut  to  bed- 
rock and  prospect  for  the  apex  of  any  underlying  lode. 

Borraska.    The  reverse  of  Bonanza.    Out  of  pay. 


GLOSSARY.  34 1 

Boulder.     A  large  loose  rounded  mass  of  stone. 
Breast.     The  heading  of  a  drift,  tuuuel,  or  other  hor- 
izontal working. 

Breccia.    A  conglomerate  of  angular  fragments. 
Broacliin^.     Trimming  or  straightening  a  working. 
Buddliii^.     Separating  ores  by  washing. 
Biilii'Mi      Uncoined  gold  or  silver. 
Caclic.     A  place   where  a  prospector's  provisions  or 
outfit  is  buried  or  hidden.     French. 

Cage.    The  frame  to  hold  the  bucket  or  car. 
Canon.    A  narrow  valley.    Termed  Box  Canon  when 
the  sides  are  perpendicular.    Sp. 

Cap.  Space  where  the  walls  contract  so  as  to  leave 
only  a  trace  of  the  vein.  A  pinch.  (2)  A  space  in  the  vein 
where  the  gangue  becomes  barren. 

Carbonates.  The  combination  of  carbonic  acid  with 
bases.  Soft  carbonates  have  lead  foi  a  base.  Hard  car- 
bonates have  iron  for  a  base. 

Cement.  Gold  bearing  gravel  united  and  hardened 
into  a  compact  mass. 

Chaffee  Work.     A  local  term  for  annual  labor. 
Cheek.    The  side  or  wall  of  a  vein. 
Chimney.     A  pocket  or  ore  body  when  found  pipe- 
shape,  with  general  pi-rpendicular  position. 

Chlorides.  Compounds  of  chlorine  with  other  ele- 
ments. 

Chute  (or  Shoot).  A  flume  for  sliding  ore.  (2)  A 
chimney  of  ore.    French. 

Cinn    bar.    Sulphide  of  mercury. 
Claim.     A  location.    The  amount  of  ground  which 
may  be  located  by  a  single  person  or  association. 


342  GLOSSARY.  • 

Clean-up.  The  operation  of  collecting  the  gold  which 
has  settled  in  the  flume  of  a  placer  or  in  an  arastra. 

Cleavage.  The  property  of  splitting  more  or  less 
readily  in  certain  definite  directions. 

Coafcter.  One  who  picks  dump,  or  gleans  in  aban- 
doned mines  for  ore  in  sight. 

C   bbing.     Ore  sorting. 

Collar.  (1)  The  top  of  a  shaft  or  winze.  (2)  Th© 
timbering  of  a  shaft  when  carried  above  the  surrounding 
surface. 

Color.     A  particle  of  gold  in  the  pan. 

Concentration.  The  removal  by  mechanical  means 
of  ore  from  the  gangue  or  slime. 

Contact.     The  plane  of  meeting  of  two  formations. 

Contact  Vein.  A  vein  along  the  plane  of  contact  of 
two  dissimilar  formations,  consequently  separating  the  two 
formations.     Von  Cotta,  28. 

Copper.  A  metallic  element ;  red  ;  fusing  point  1996° 
Fahr.  Symbol  Cu.  Atomic  weight  63.5.  Specific  gravity 
8.9. 

Cost-Book  Company.  A  system  of  mining  partner- 
ship local  to  Cornwall  and  Devon. 

Country  Rock.  The  rock  beyond  the  sides  of  a  lode. 
The  strata  between  or  across  which  the  lode  is  found. 

Course  ol  Vein.  Its  strike.  The  horizontal  line  on 
■which  it  cuts  the  country  rock. 

<  oyoting.    Spasmodic  irregular  surface  mining. 

Cradle.    A  rocker.     A  short  trough  for  washing  gold. 

Cribbing.  The  timber  lining  of  a  shaft,  winze  or 
mill-hole.  The  term  is  applied  to  rough  or  light  timbering 
as  distinguished  from  solid  set-work. 


GLOSSARY.  343 

Cropping  Out.  The  rising  of  layers  of  rock  to  the 
surface. 

Cross  Course.     An  intersecting  vein. 

Cross  Cut.  A  level  drifen  across  the  course  of  a 
vein.     A  short  tunnel. 

Cut.  To  intersect  a  vein.  Open  CuT.  A  horizontal 
opening  at  the  surface  not  reaching  cover. 

Dead  lliches.     Base  bullion. 

Dead  Work.  The  developing  of  a  mine  preparatory 
to  stoping.    S^e  page  154. 

Debris?,  The  loose  fragments  detached  from  the  bod 
rock  and  washed  down,  to  which  the  term  slide  ismore  ap- 
propriate ;  waste  rock  of  any  kind.     French. 

Deep.    The  lower  portion  of  a  vein. 
Denounceniciit.    The  Mexican  or  Spanish  equiva- 
lent to  "location  and  record  of  a  claim." 

Descension-Theory.  The  theory  that  veins  were 
filled  from  above. 

Di«f.;intjs.     Placers.     Amer. 

Dike.  A  vein  of  non-mineral  bearing  rock.  A  fissure 
filled  with  barren  material. 

Diluvium.  A  deposit  of  loose  boulders,  earth,  &c., 
attributed,  geologically,  to  deposition  from  water. 

Dip.    The  lino  of  declination  of  strata.    Bainbridgf. 
Yale.    The  angle  which  a  lode  makes  with  the  plane  of  the 
horizon.     Von  Cotia,  26.     The  departure  of  a  vein  from  the 
perpendicular  or  from  the  horizontal. 

Ditch.  An  artificial  water  course,  flumo  or  canal, 
with  or  without  natural  channels. 

Divining  Rod.  A  witch-hazel  rod  used  in  prospect- 
ing for  lodes.     Law  ».  Grant,  7  M.  R.,  57. 


344  GLOSSARY. 

Drift.  An  underground  passage  driven  horizontally 
on,  or  with,  the  vein. 

Downcast.  A  ventilating  shaft  with  descending  cur- 
rent of  air. 

Dump.  A  deposit,  or  place  of  deposit,  of  waste  rock 
or  tailings. 

El  van  Course.    A  plutonic  dike.     Lyell.   Argall.    Cor. 
Exploitation.     The  active  working  of  a  mine  as  dis- 
tinguished from  prospecting.    French. 

Eye.     The  top  of  a  shaft. 

Pace.     Synonymous  with  breast. 

Fathom.  A  space  6  feet  forward  and  6  feet  vertical 
with  the  width  of  the  vein.     Corn. 

Fauit.  A  dislocation  of  the  strata.  Bainbridge.  Yale. 
The  dislocation  of  a  vein  from  its  original  position;  a 
heave  ;  a  throw.    Von  Cotta,  29. 

Feeder.  A  small  vein  starting  from  some  distant 
point  and  running  into  a  main  lode.  It  is  practically 
synonymous  with  spur.     See  Baitibridge,  2. 

Feldspar.  A  vitreous  crystalline  constituent  of  granite, 
gneiss,  porphyry  and  many  other  rocks. 

Fissure  Vein.  A  fissure  or  crack  in  the  earth  across 
its  strata,  filled  with  mineralized  matter. 

Float.  Loose  quartz  detached  from  the  vein  and 
found  below  it. 

Float  Ore.  Masses  or  particles  of  ore  detached  from 
the  vein  and  found  below  it.    See  9  M.  E.,  600. 

Flookan.     A  soft  decomposed  cross-course.     Cornish. 
Floor.     The  rock  underlying  a  horizontal  vein  or  de- 
posit. 


GLOSSARY;  345 

Flume.  A  ditch  carried  iu  frame-work  on  or  above 
the  surfiK'c. 

Fooc-Wall.    The  under  wall  of  the  vein. 

Forl'eiture.  The  loss  of  possessory  title  as  the  result 
of  abandonment  or  the  failure  to  comply  with  the  condi- 
tions under  which  the  title  was  held. 

Gad.    A  small  pointed  wedge. 

Galena.  A  sulphide  of  lead  ;  when  not  amorphous, 
ii  crystalized  on  the  cubic  system  ;  when  pure  contains  86 
per  cent,  lead,  14  per  cent,  sulphur.  Carries  silver  in 
greatly  varying  quantity. 

Gallery.  A  level  or  drift;  applied  chiefly  to  col- 
lieries. 

Gangiie.  Crevice  material;  vein  matter;  the  base 
material  forming  the  matrix  of  the  ore. 

Gash  Vein.  A  vein  which  continues  for  practical 
purposes  only  a  short  distance  below  the  sod,  generally 
narrowing  as  it  descends. 

Geotle.  A  rounded  nodule  of  stone  containing  a  cav- 
ity studded  with  crystals  or  mineral  matter;  the  cavity  in 
such  nodule. 

Gneiss.  A  rock  composed  of  the  same  constituents 
as  granite,  but  foliated  or  stratified. 

Gob  Fire.  Fire  iu  collieries  produced  by  spontane- 
ous combustion. 

Gold.  A  metallic  element ;  bright  yellow;  specific 
gravity,  19.34  ;  fusing  point  201G  degrees  Fahr.  Almost 
invariably  found  native  associated  with  a  variable  percent- 
age of  silver.  Symbol  Au.  Atomic  weight  196.6.  One 
ounce  pure  gold  coined  iu  U.  S.  dollars  is  worth  $20.67. 

Gossan.     See  Iron  Bat. 


346  GLOSSAEY. 

Grass.    The  surface  over  a  mine.    Cor. 

Grass  Roots.  A  term  used  where  a  working  is  start- 
ed from  or  worked  up  to  surface.     Amer. 

Gouge.  The  selvage ;  a  clay  streak  found  following  a 
wall,  or  a  slip  or  an  ore  measure. 

Granite.  A  plutonic  crystaline  rock  composed  of 
feldspar,  quartz  and  mica. 

Grut-Stake.  Provisioning  a  prospector  on  a  bargain 
to  share  his  discoveries. 

Hanging  WaH.    The  upper  wall  of  a  vein. 

Heading.     The  breast  or  face  of  a  working. 

Headings.  The  mass  of  gravel  and  pay  dirt  above 
the  head  of  a  sluice. 

Heave.  The  horizontal  dislocation  of  one  lode  by  an- 
other. 

High  Explosives.  Those  of  greater  detonating  force 
than  black  powder. 

Horse.  A  mass  of  country  rock  between  the  enclos- 
ing walls  of  a  vein.  To  constitute  a  Horse,  "It  is  necessary 
that  the  walls  should  converge  about  the  mass  below  and  at 
both  ends,  but  the  greatest  known  horses  do  not  converge 
over  head.  The  two  walls  coming  to  the  surface  are  in 
some  instances  1,000  feet  apart."  Testimony  of  Clarence 
King  in  the  Dives  Case. 

Hudge.     An  iron  bucket  for  hoisting. 

Hydraulics.  That  method  of  placer  mining  where 
the  gravel  is  washed  by  a  stream  operating  under  hydraulic 
pressure. 

Hungrj'.     Barren. 

Impregnation.  A  metallic  deposit  having  undeter- 
mined limits  in  no  way  sharply  defined.     Von  Cotta,  87. 


GLOSSARY.  347 

Incline  Drift.  A  drift  run  at  au  incline  to  subserve 
the  drainage.  (2)  A  misnomer  applied  to  aslope  sunk  upon 
a  deposit  having  slight  departure  from  the  horizontal. 

Iiifi  tration  Theory.  That  which  refers  the  origin 
of  the  ore  to  the  deposit  of  mineral  from  water  holding  it 
in  solution. 

Injection  Theory.  That  which  refers  the  origin  of 
the  ore  to  the  introduction  of  igneous  fluid. 

In  Place.  Ill  situ.  Words  used  in  Section  2329  of  the 
U.  S.  Revised  Statutes,  qualifying  the  words  "quartz  or 
other  rock,"  and  to  distinguish  lode  from  placer  claims. 
See  page  90. 

Iron  Hat.  (Eisen  Hut.)  The  outcrop  of  a  lode,  it  be- 
ing usually  colored  by  the  decomposition  of  the  iron.  Ger- 
man.    Ton  Cotta,  38. 

Jig.  A  machine  for  concentrating  ore  by  means  of 
sieves.     Cornlih. 

Jump.  To  take  forcible  possession  of  a  claim.  2.  To 
relocate  abandoned  property. 

Jumpins  Act.    See  page  195. 

Kibb'e.     A  kind  of  hoisting  bucket.     CornUh. 

Lagii inj^.  Poles  or  small  timbers  used  for  spanning 
from  one  stuU-piece  to  another,  for  cribbing  mill-holes,  and 
for  lining  behind  the  timbers  of  a  shaft. 

Lead.     An  objoctionahle  form  of  the  word  lode. 

liCad.  A  metallic  element;  bluish  white;  fusing 
point  617°  Fahr.  Symbol  Pb.  Atomic  weight  207.  Specific 
gravity  11.30.  Galena  and  carbonates  are  its  most  common 
ores. 

Ledge.  A  term  in  use  on  the  Pacific  slope  synony- 
mous with  lode.    See  p.  96. 


348  GLOSSARY. 

Liength.  A  certain  portion  of  a  vein  when  taken  on 
a  horizontal  line  on  its  com'se. 

Liexeh  A  drift  along  the  vein;  the  word  generally 
used  where  there  are  a  series  of  drifts,  as  first  level,  second 
level,  &c. 

liittle  Giavit.  A  jointed  iron  pipe  and  nozzle  de- 
creasing in  diameter  with  the  increase  of  the  hydraulic 
pressure  ;  used  in  placer  mining. 

Location.  Those  successive  acts  by  which  a  claim 
is  appropriated.     (2)  'Ihe  claim  itself.     Amer. 

Lode.  An  aggregation  of  mineral  matter  containing 
ores  in  fissures.  Von  Colta,  26.  A  vein  of  metallic  ore.  A 
ledge.     Cornish.    See  p.  95. 

Man  Hole.  An  opening  large  enough  to  permit 
access  between  two  workings. 

Matrix.  (Of  the  lode) :  The  country  rock  in  which 
the  vein  is  found.  (Of  the  ore) :  The  rock  or  earthy  ma- 
terial enclosing  the  ore ;  the  vein-stone. 

Metal  kirgy.  The- art  of  working  metals,  including 
smelting,  refining,  and  parting  them  from  the  ores. 

Mica_.  One  of  the  constituents  of  granite.  When 
separately  crystallized  is  found  in  clear  laminated  plates. 
Found  in  the  lode  as  well  as  in  the  matrix  of  the  lode. 

Miil-Hole.  A  passage  left  in  the  stope  for  throwing 
down  rock  and  ore. 

Mil!  Kun.  The  returns  of  a  lot  of  ore;  the  assay  of 
ore  in  quantity  as  distinguished  from  a  specimen  assay. 

Mine.  Any  excavation  made  for  mineral.  (2)  An 
open  as  distinguished  from  an  untouched  deposit.  (3) 
Underground  as  distinguished  from  superficial  workings  or 
quarries. 


GLOSSARY.  349 

Mincr'rt   Inch.    SUtutoiy  deCuition,  Ocu.  Statutes, 
?  3472. 

Moy'e.      A    drill    or  short  bar  sharpened  to  a  point, 
used  in  cutting  hitches  and  in  bioaching. 

Nodu'e.     A  small  rounded  stony  concretion. 

Open  Cut.   A  longitudinal  surface  working  not  enter- 
ing cover. 

Operator.  One  who  works  a  mine  sither  as  owner 
or  lessee. 

Ore.  The  mechanical  or  chemical  compounds  of  the 
metals  with  baser  substances. 

Ore  Reserves.  The  ore  body  where  exposed  ready 
for  sloping. 

Outcrop.  That  portion  of  a  vein  appearing  at  the 
surface. 

Output.     The  gross  produce  of  a  mine. 

Pan.     An  iron  basin  used  in  gold  prospecting. 

Patch.  A  small  placer  claim  outside  of  the  main 
gulch. 

Pay  Rock.  The  lode  material  in  which  the  mineral 
or  pay  is  found.    .S'ee  Quartz. 

Pay  Siroak.  The  ore  body  proper,  or  the  thin  seam 
of  decomposed  material  which  takes  its  place  and  preserves 
the  continuity  of  the  ore  body. 

Pent  House.  A  shed  or  horizontal  barricade  across 
one  end  of  a  shaft,  made  of  strong  timbers  loaded  with  rock 
to  protect  against  any  accidental  fall  from  above.     Corn. 

Pinch.  The  narrow  space  where  the  walls  come  close 
together. 

Pit.     A  shallow  shaft. 

Pitch.     The  dip  of  a  lode. 


350  GLOSSARY. 

Placer.  A  deposit  of  gold  not  in  place :  ajiplied  to 
all  classes  of  gold  deposit,  including  cement  and  channel 
claims,  except  lodes  in  place.  For  special  meaning  under 
Section  2329  U.  S.  Rev.  St.,  see  page  117,  and  Gregory  v. 
Pershbaher,  14  Pac.  401. 

Plat.  A  small  chamber  on  the  side  or  sole  of  a  level 
where  it  intersects  a  shaft,  made  to  facilitate  dumping. 
Where  it  is  cut  in  the  sole  it  is  called  a  trip-plat.     Cam. 

Pocket.    A  detached  ore  body  ;  a  nest  of  ore. 

Pockety.  A  term  applied  to  a  mine  where  the  pay 
ore  occurs  in  small  detached  bodies  with  intervals  of  poor 
ore  or  barren  material.  The  word  implies  a  slur  on  the 
mine.     Paull  v.  Salferty,  9  M.  E.,  149. 

Porphyry.  A  general  term  including  such  plutonic 
rocks  as  exhibit  well  formed  crystals,  usually  of  feldspar, 
in  a  finely  granular  or  compact  base  of  the  same.     Gr. 

Porphyritic  Granite.  A  base  of  granite  containing 
prominent  crystals  of  feldspar. 

Prospecting.  A  search  for  deposits  ;  applied  both  to 
the  seeking  of  undiscovered  veins  and  to  the  investigation 
of  the  value  of  known  veins  by  exploration. 

Pyrites.  (White)  A  sulphide  of  iron.  (Yellow)  A 
sulphide  of  copper.     Gr. 

Quarry.  Any  open  work  in  rock  on  a  plan  of  exca- 
vating the  entire  mass,  as  distinguished  from  working  a 
seam  or  vein  by  shafts  or  approaches  under  cover. 

Quartz.  Silica.  A  constituent  of  granite.  The  free 
gold  of  California  being  found  in  quartz,  the  word  was  ap- 
plied to  the  gangue  of  such  lodes  and  so  to  other  forms  of 
vein  matter,  until  it  is  now  used  vaguely  to  mean  the  ore, 
the  float,  the  gangue,  or  that  part  of  the  gangue  which  in- 
dicates the  pay  streak.    In  the  Acts  of  Congress  it  is  used 


GLOSSARY.  35  I 

with  the  word  rock  (quartz  or  other  rock)  iu  the  sense  of 
pay  rock. 

Quicksilver.     Mcnury. 

Raist>.  A  shaft  or  winze  which  has  beeu  worked  from 
below. 

Itiflio  Blocks.  Cross  sections  of  timber  set  ou  the 
floor  of  a  sluice,  with  irregular  spaces  between,  in  which 
the  gold  settles.     American. 

Klse.     See  Raise. 

lleef.     An  Australian  term  for  lode  or  ledge. 

Rob.  To  gut  a  mine:  to  work  for  the  ore  in  sight 
without  regard  to  supports  or  any  future  considerations. 

llocker.    See  Cradle. 

JtooT.  The  stratum  or  rock  overlying  a  deposit,  or 
flat  vein. 

Royalty.    The  dues  to  the  lessor. 

Rusty.  Oxidised.  Ore  coated  with  oxide.  Applied 
to  gold  which  will  not  easily  aiualgaiuate. 

Scale.  A  loosened  fragment  of  rock  threatening  to 
break  olT  and  fall. 

Sc.'hist.  Crystalline  or  uietamorpliic  rock  with  slaty 
structure  :  usually  carrying  mica,  sometimes  argillaceous. 

Scyr.  fjatioiis.  All  those  aggregations  of  ore  having 
irregular  form  but  definite  limits.  They  difter  from  beds 
and  lodes  by  the  irregularity  of  their  form ;  from  impreg- 
nations by  their  definite  limits.     Von  Cotta,  81. 

Selvage.  A  lining;  a  gouge;  a  thin  baud  of  clay 
often  found  in  the  vein,  upon  the  wall. 

Set.    Portion  of  ground  taken  by  a  tributer. 


352  GLOSSARY. 

Shaft.  A  pit  sunk  from  the  surface ;  au  opening 
more  or  less  perpendicular  sunk  on,  or  sunk  to  reach  the 
vein. 

Shift.  A  miner's  turn  or  spell  of  work.  Webster. 
Two  shifts  imply  16  or  20  hours  work  ;  three  shifts  imply 
24  hours  work. 

Sill.     A  windlass  frame. 

Silver.  A  metallic  element ;  the  whitest  of  the  met- 
als ;  specific  gravity,  10,53 ;  fusing  point,  1873°;  symbol, 
Ag.;  atomic  weight,  108.  1  oz.  pure  silver  coined  in  U.  S. 
dollars  is  worth  $1.2929,  gold. 

Silver  Glance.  Auore;  when  pure,  contains  87  per 
cent,  silver  and  13  per  cent,  sulphur. 

Skip.  A  square  hoisting  bucket  running  on  guides^ 
or  in  grooves. 

Slickensides.  Smooth,  polished  portions  of  the  wall 
or  of  some  vertical  plane  in  the  lode,  caused  by  friction.  It 
may  occur  on  the  ore  itself.     German. 

Slide.  One  kind  of  fault — the  vertical  dislocation  of 
a  lode. 

Slide.  The  mass  of  loose  rock  overlying  either  lode 
or  country. 

Slope.     Au  opening  upon  the  inclination  of  the  vein. 

Sluice.  A  series  of  boxes  set  in  line  and  floored  with 
riflle  blocks. 

SmeUiiiff.  The  reduction  of  metals  from  their  ores 
in  furnaces.  It  is  a  form  of  the  word  melt.  In  smelting  the 
ore  is  melted.     In  other  processes  it  is  roasted. 

Sole.     The  floor  of  a  horizontal  working. 

Sollar.  Any  platform  or  wooden  floor  or  covering  in 
a  working.     Cornish. 


GLOSSARY.  353 

Sough.     A  drain.     Eng. 

Spar.  A  general  term  applied  to  rock  with  distinct 
cleavage  and  luster. 

Spur.     A  branch  or  off-shoot  to  a  larger  vein. 

Spiling.  Timbering  used  in  quicksand  or  loose 
ground  where  lathes  are  driven  behind  timbers  and  kept 
flush  with  the  heading. 

Stamps.  Machines  for  crushing  ores  by  vertical 
stroke. 

Stope.  The  working  above  or  below  a  level  where  the 
mass  of  the  ore  body  is  broken.     Com. 

Stoi>ing.  The  act  of  breaking  theore  above  or  below 
a  level ;  when  done  from  the  back  of  the  drift  it  is  called 
over-hand  or  back  stoping ;  when  from  the  sole  it  is  under- 
hand stoping. 

^stratum.  A  bed  of  rock  or  earth  of  any  kind.  Dana. 
The  plural  is  strata. 

Strike.  The  extension  of  a  lode  or  deposit  on  a  hori- 
zontal line.  Vo)i  Cotia,  19.  Synonymous  with  trend  and 
course. 

StuUs.     Cross  timbers  at  the  foot  of  a  stope. 

Sublimation  Theory.  That  which  refers  the  filling 
of  fissures  to  material  deposited  from  ascending  steam,  or 
by  condensation  from  a  gaseous  condition. 

Sulphide.  The  chemical  union  of  sulphur  with  a 
metal. 

Sulphuret.  A  sulphide.  Sulphide's  the  more  recent 
and  approved  term. 

Sump.  The  extension  of  a  shaft,  forming  a  pit  for  the 
collection  of  water.     Corn. 

12 


354  GLOSSARY. 

Syndicate.  An  association  or  council  of  persons  ;  in 
use  since  the  war,  to  designate  any  combination  formed  to 
carry  out  a  large  financial  enterprise. 

Tackle.     The  windlass,  rope  and  bucket.     Corn. 

Tailings.  The  refuse  discharged  from  tlie  tail  or 
lower  end  of  a  sluice,  or  washed  from  any  sort  of  placer 
working. 

Tr  i  I  (liters.  Miners  who  work  a  set,  or  piece  of  ground, 
taking  the  proceeds  as  wages,  after  royalty  deducted  ;  but 
who  work  under  direction  of  the  owners  and  hold  no  pos- 
session or  title  as  lessees. 

Trouble.     A  fault. 

Tunnel.  A  horizontal  excavation  starting  at  the  sur- 
face and  driven  across  the  country  for  the  discovery  or 
working  of  a  lode  or  lodes. 

Tut  work.  Work  paid  for  by  the  foot  as  distinguished 
from  tribute  work. 

Upcast.     A  ventillating  shaft  where  the  air  ascends. 

Veins.  Aggregations  of  mineral  matter  in  fissures  of 
rocks.  Von  Cotta,  26.  4  Saw.,  310;  Bainhridge,  2.  The 
word  vein  has  a  broader  scope  than  lode,  including  uon- 
metalic  beds.  See  p.  92.  It  is  also  applied,  in  working,  to 
smaller  zones  threading  the  greater  deposit.  See  Vena  and 
Veta. 

Vena.    The  branches  of  the  veta,  or  main  vein.    Span. 

Veta.     A  main  vein.     Span. 
Vug.     A  cavity. 

Wall.  The  plane  of  the  country  where  it  touches  the 
side  of  the  vein,  when  used  with  reference  to  lodes.  Tie 
side  of  a  level  or  drift,  when  used  with  reference  to  the 
workings      See  p.  105, 


GLOSSARY.  355 

Wheal.  A  pit  or  hole  in  the  jjround.  A  mine.  The 
names  of  most  mines  in  Cornwall  are  preceded  by  the  word 
Wheal.    Old  form  Huel.     Cornish. 

Whim.  A  machine  for  raising  the  bucket  by  means 
of  a  revolving  drum. 

Whip.  An  apparatus  for  raising  the  bucket  with  rope 
and  pulleys,  by  horse  power  on  a  straight  drive. 

Winze.  A  shaft  sunk  from  a  level ;  not  necessarily 
connecting  two  levels. 

Ziiik.  A  metallic  element;  blueish  white;  fusing 
point  773°  Fahr  ;  generally  found  as  a  sulphide  (blende)  or 
as  a  carbonate  (calamine).  Atomic  weight,  65.2 ;  specific 
gravity,  8,9. 


TABLE  OF  CASES  CITED. 


Ahren  v.  Dubuque  Co.,  108. 
Anderson  v.  Harvey,  192. 
Anderson  v.  Harper,  189. 
Ardesco  Co.  v.  Gilson,  189. 
Argentine  Co.  v.  Terrible  Co.,  104. 
Armstrong  v.  Lower,  32,  83,  'J4,  108. 
Arnold  v.  Baker,  184. 
Aspen  Co.  v.  Rucker,  196. 
Atchison  v.  Peterson,  110, 126. 
Atkins  V.  Hendrie,  57,  90. 
Attorney  General  v.  Cliambers,  198. 
Attwood   V.  Fricot,  22, 186. 

Baird  v.  Williamson,  108. 
Barker  v.  Dale,  52. 
Barnard  v.  McKenzie,  143. 
Basey  v.  Gallagher,  110. 
Baxter  Co.,  v.  Patterson,  41. 
Bay  State  Co.,  v.  Brown,  185. 
Becker  v.  Pugh,  17,  22,  185,  301. 
Beckner  v.  Coates,  299. 
Belcher  Co.,  v.  Deferrari,  61. 
Belk  V,  Meagher,  49,  57,  61. 
Bell  V.  Bed  Rock  Co.,  8,  52. 
Bennitt  v.  Whitehouse,  198. 
Berea  Co  v.  Kraft,  189. 
Blake  v.  Butte  Co.,  84. 
Boggs  V.  Merced  Co.,  80,  81. 
Bowman  Lode,  34. 
Bracken  v.  I  reston,  192. 
Bradbury  v.  Davis,  162. 
Bradley  v.  Harkness,  111. 
Branagan  v.  Dulaney,  89. 
Breeze  v.  Haley,  140. 


CASES  CITED.  357 


Brooks,  in  re,  65. 
Brown  v.  CaUlwoU,  189. 
Brown  V.  -19  Co.,  134. 
Bullion  Co.  V.  Eureka  Co.,  94. 
Burdgc  V.  Underwood,  131. 
Burke  v.  McDonald,  .m. 
Burnett  V.  Whitesides,  191. 
Butte  Co.  V.  Vaughn,  111. 

Caldwell  V.  Fulton,  131. 

Cameron  v.  Seaman.  20.5. 

Campbell  v.  Rankin,  50. 

Capner  v.  Flemington  Co.,  190. 

Carney  v.  Arizona  Co.,  125. 

Chamberlain  v.  Collinson,  188. 

Chambers  v.  Brown,  188. 

Champion  Co.  v.  ^Yyoming  Co.,  300. 

Chapman  v.  Toy  Long,  125, 1G7, 192. 

Clare  v.  Peo.,  182. 

Clary  v.  llazlctt,  80. 

Clavering  v.  Clavering,  190. 

Comstock,  in  re,  177. 

Cole  Co.  V.  Virginia  Co.,  19C. 

Colman  v.  Clements,  8. 

Cons.  Rep.  Co.  v.  Lebanon  Co.,  17,  22. 

Corning  T.  Co.  v.  Pell,  3G,  136. 

Courcbainc  V.  Bullion  Co.,  50. 

Cox  V.  Clough,  200. 

Crane  v.  Salmon,  162. 

Croesus  Co.  v.  Colorado  Co.,  44. 

CuUacott  V.  Cash  Co.,  44. 

Davis  V.  Gale,  111. 
Debris  Cases,  1'27. 
Deffeback  v.  Hawke,  80.     * 
Depuy  V.  Williams,  52. 
Derry  v.  Ross,  51. 
Dodge  V.  Marden,  112. 
Dougherty  v.  Crary,  52. 
Drummond  v.  Long,  41. 


358  CASES  CITED. 

Dugdale  v.  Robertson,  198, 13  M.  R.,  662,  (3  Kay  &  J.  695.) 

Duggan  V.  Davey,  102. 

Du  Prat  V.  James,  49,  57. 

Durant  Case,  105. 

Duryea  v.  Boucher,  41. 

Duryea  v.  Burt,  141. 

Eagle  V.  Badger  case,  34. 

Eagle  Salt  Works,  74. 

Eclipse  Co.,  V.  Spring,  84. 

Edwards  v.  Allouez  M.  Co.,  126. 

Ege  V.  Kille,  187. 

Eilers  v.  Boatman,  48. 

Electro-Magnetic  Co.,  v.  Van  Auken,  35. 

Elgin  Co.  V.  Iron  S.  Co.,  108. 

Emma  Mine  Case,  191. 

Empire  Co.  v.  Bonanza  Co.,  187. 

English  V.  Johnson,  22,  50. 

Ennor  v.  Barwell,  198. 

Equator  Co.  v.  Marshall  Co.,  115. 

Erhardt  v.  Boaro,  28,  31,  37,  50,  62, 192. 

Ernest  v.  Vivian,  193. 

Esmond  v.  Chew,  125. 

Eureka  Co.  v.  Richmond  Co.,  77,  95,  97. 

Faxon  v.  Barnard,  48, 

Ferguson  v.  JSeville,  1C8. 

Ferris  v.  Coover,  51. 

Field  V.  Beaumont.  191 . 

Finerty  v.  Fritz,  150. 

Flagstaff  Case,  92,  104. 

Foote  V.  National  Co.,  34. 

Forbes  v.  Gracey,  140. 

420  Mining  Co.  v  Bullion  Co.,  77, 199. 

Frank  Co.  v.  Larimer  Co*.,  300. 

Garfield  Co.  v.  Hammer,  49,  168. 

Gelcich  v.  Moriarity,  36. 

Gilpin  County  M.  Co.  v.  Drake,  37,  41, 188. 

Gleeson  v.  Martin  White  Co.,  22,  36,  37,  49,  89,  95. 


CASES  CITED.  359 

Gold  UirtLode,  2tU. 

Gold  mil  Co.  V.  Ish,  133. 

Gold  Tel.  Co.  v.  Commercial  Tel.  Co.,  193. 

Golden  Fleece  Co.  v.  Cable  Co.,  7,  77,  92, 1G7,  185. 

Golden  Gate  Co.  v.  Snperior  Court,  127. 

Golden  Terra  Co.  v.  Mahler,  29. 

Gonu  V.  Russell,  22,  37,  61. 

Good  Return  M.  Co.  mre,  119. 

Gore  V.  McBrayer,  8,  CS. 

Gray  v.  Truby,35. 

Graydon  v.  Hood,  00. 

Great  Western  Lode,  271. 

Grey  v.  Northumberland,  191. 

Gregory  v.  Pershbaker,  S.'SU;  U  Pac.  JOl. 

Griffith  Lode  Case,  60. 

Ground  Hog  lode  in  re,  261 

GwilUm  V.  Donnellan,  32, 

Hall  V.  Equator  Co.,  89,  91,  94,  191. 

Hall  V.Hale,  56. 

Hall  V.  Johi  sou,  188. 

Hamilton  v.  Ely,  191. 

Hardin  Lode  Case,  -10,  41. 

Hardt  v.  Liberty  Hill  Co.,  127. 

Harkness  v.  Burton,  52. 

Harlan  v.  Harlan,  1h9. 

Harrington  v.  Chambers,  29,  97,  303,  304 

Harris  v.  Equator  Co.,  11, 186, 199. 

Harvey  v.  Ryan,  8. 

Hauswirth  v.  Butcher,  23,  S6. 

Hawxhnrst  v.  Lander,  60. 

Henshaw  v.  Clark,  192. 

Hess  V.  Winder,  17,  22,  186, 192. 

Heydenfeldt  v.  Daney  Co.,  80, 133. 

Hicks  V.  Compton,  192. 

Hlgglns  V.  John  Gold  Co.,  306. 

Hobbs  V.  Amador  Co.,  127. 

Holland  v.  Mt.  Auburn  Co.,  36. 

Horner  v.  Watson,  131. 

Horswell  v.  Ruiz,  49. 


360  CASES  CITED. 

Hyman  v.  Wheeler,  97,  08. 

International  Co.  v.  Miles,  193. 
Iron  S.  M.  Co.  v.  Cheesman,  98,  103. 
Iron  S.  M.  Co.  v.  Murphy,  100. 
Irwin  V.  Davidson,  190,  191. 

J.  Q.  S.  Lode,  261. 

Jackson  v.  Roby,  57,  12.5,  185,  301. 

Jennison  v.  Kirk,  110. 

Johnson  v.  Buell,  92. 

Johnstone  v.  Robinson,  157. 

Jones  V.  .lackson,  127. 

Jupiter  Co.  v.  Bodie  Co.,  29,  41,  58, 104. 

Kahn  v.  Old  Telegraph  M.  Co.,  77,  80. 
Kendall  v.  San  Juan  Co..  179. 
Kevern  v.  Prov.  Co.,  189. 
King  V.  Edwards,  61. 
King  V.  Thomas,  134,  200. 
Kramer  v.  Settle,  57,  62. 

Lalande  v.  McDonald,  49. 

Lampman  v.  Milks,  110. 

Laughlin  v.  Hawley,  164. 

Law  V.  Grant,  343. 

Leadville  Co.  v.  Fitzgerald,  96. 

Lebanon  Co.  v.  Rogers,  93,  200. 

Lee  Doon  v.  Tesh,  167,  168,  302. 

Leggatt  V.  Stewart,  23. 

Lewis  V.  Marsh,  198. 

Lime  Lode  Case,  105. 

Lincoln  v.  Rodgers,  126. 

Little  Gunnell  Co.,  v.  Kimber,  ,57,  61,  68. 

Little  P'gh  Co.  v.  Araie  Co.,  32. 

Little  Schuylkill  Co.  v.  Richards  11.5. 

Lockwood  V.  Lunsford,  191,  192. 

Logan  V.  Driscoll,  125. 

Lonsdale  v.  Curwen,  198. 

Lorimier  v.  Lewis,  74. 

Maeris  v.  Bicknell,  111,  112. 


CASES  CITED.  36  | 

Magnet  Co.,  v.  Page,  192. 

Mallctt  V.  Uncle  Sam  Co.,  11,  51,  52. 

Mammoth  Co.'s  App.,  191. 

Marvin  v.  Hrew.ster  Co.,  131. 

Mather  v.  Trinity  Church,  169. 

Mellors  v.  Shaw,  18i». 

Merced  Co.  v,  Fremont,  191, 192. 

Merrltt  V.  Judd,  11. 

MoUie  Mullen  Mill  Site,  129. 

Monroe  v.  N.  Pac.  Co.,  188. 

Moody  V.  McDonald,  188. 

Moore  v.  Ferrell,  191,  192. 

.Moore  v.  Robius,  81. 

Moore  v.  Smaw,  132. 

More  V,  Massinl,  192. 

Morris  v.  DeWitt,  189. 

Morton  v.  Nebraska,  74. 

Mt.  Diablo  Co.  v.  Calli.sou,  57,  97. 

Murley  v.  Ennis,  28, 157. 

Murphy  v.  Cobb,  184. 

Myers  v.  Spooncr,  51. 

McAndrews  v.  Burney,  188. 

McCord  V.  Oakland  Q.  Co.,  65. 

McCormick  v.  Varnes,  104. 

McEvoy  V.  Hyman,  73,  305. 

McGarrlty  v.  Byiugton,  57. 

McGinnls  v.  Egbert,  29,  33,  37,  49,  63,  64,  73,  185.  30J. 

McGoon  V.  Ankeny,  52. 

McKinstry  v.  Clark,  35,  48. 

Neuman  v.  Drelfurst,  6.5. 

New  York  Hill  Co.  v.  Rocky  Bar  Co.,  '29o, 

Noonan  v.  Caledonia  Co.,  179. 

North  Noonday  Co.  v.  Orient  Co.,  28,  48,  9'.,  1 VS  H5. 

Noteware  v.  Stearns,  110. 

Noycs  V.  Black,  18. 

O'Kelfe  V.  Cunningham,  12P. 

Old  Tel.  M.  Co.,  v.  Central  Co.,  191. 

Ontario  S.  M.  Co.,  in  re.  13^1. 


362  CASES  CITED. 

Ophir  Co.,  V.  Carpenter,  112. 
Oregon  Co.,  y.  Trullenger,110. 
Oreamuno  v.  Uncle  Sam  Co.,  51. 
O'Reilly  v.  Cam  pell,  62. 
Osterman  v.  Baldwin,  167. 
Overman  Co.  v.  Corcoran,  28. 

Pacific  Co.  V.  Spargo,  103. 

Packer  v.  Heaton,  57. 

Page  V.  Fowler,  189. 

Palmer  v.  Uncas  Co.,  143. 

Pardee  v.  Murry,  85,  88. 

Parrott  v.  Palmer,  191, 193. 

Patterson  v.  Hitcticock,  25,  28,  92,  94,  159. 

Paull  V.  Halferty,  350. 

Pelican  Co.  v.  Snodgrass,  61. 

People  V.  Gold  Run  Co.,  127. 

People  V.  Page,  181. 

People  V.  Sloper,  181. 

People  V.  Williams,  182. 

Perry  v.  Ricketts,  188. 

Plienix  Co.  v.  Lawrence,  48. 

Phipp.s  V.  Hully,  201. 

Pollard  V.  Shively.  40,  42. 

Prosser  v.  Parks,  8. 

Quimby  v.  Boyd,  58. 
QuLncy  Co.  v.  Hood,  188, 189. 
Quirk  V.  Falk,  111. 

Rara  Avis  Co.  v.  Boucher,  143. 
Raunheim  v.  Dahl,  76. 
Real  del  Monti  Co.  v.  Pond  Co.,  191. 
Remington  v.  Bandit,  57. 
Reynolds  v.  Iron  S.  Co.,  123. 
Richmond  Co.,  v.  Eureka  Co.,  104. 
Richmond  Co.,  v.  Rose,  23,  304. 
Robertson  v    Smith,  12. 
Rockwell  V.  Graham,  115,  299, 
Rogers  V.  Cooney,  127. 
Rose  V.  Richmond  Co.,  80. 


CASES  CITED.  363 


Rosenthal  v.  Ives,  167, 185,  301. 
Rough  V.  Simmons,  303. 
Russell  V.  Brosseau,  (il. 

St.  John  V.  Kidd.S. 

St.  Louis  Co.,  V.  Kemp,  57,58,  80, 118,  287. 

Salmon  v.  Symonds,  133. 

Saunders  v.  Mackey,  70. 

Scogln  V.  Culver,  271. 

Sears  v.  Taylor,  7,  50, 185. 

Sierra  Co.  v.  Sears,  191. 

Silver  Bow  Co.  v.  Clarke,  76,  80. 

Smallhouse  Co.  v.  Kentucky  Co.,  113. 

Smart  v.  Jones,  110. 

Smelting  Co.  v.  Kemp,  57,  &S,  80,  118,  287. 

Smith  v.  Idaho  Q,.  Co.,  189. 

•  Smith  V.  O'Hara,  111. 
Smith  V.  Oxford  Co.,  189. 
Smith  V.  Reynolds,  150. 
Smoke  House  Lode  Case,  134. 
Sparrow  v  Strong,  10,  28. 
Stanley  v.  Little  Pittsburg  Co.,  HO. 
State  V.  Berryman,  182  . 

State  V.  Burt,  182. 
Steel  V.  Gold  Co.,  291. 
Stephenson  v.  Wilson,  199. 
Stevens  v.  GUI,  97. 
Stevens  v.  Murphy,  98. 
Stevens  v.  Williams,  96,  98. 
Stockbrldgc  Co.  v.  Cone  Works,  19S. 
Stone  Lode  Case,  291. 
Strahlendorf  V.  Rosenthal,  188,  189. 
Strang  v.  Ryan,  7U. 
Strepey  v.  Stark,  32,  73,  304. 
Sweet  V.  Webber,  37,  49, 124,  125. 

Table  Mt.  Co.  v.  Stranahan,  8. 
Tabor  v.  Dexter,  96. 

•  Talbot  v.  King,  77. 80. 
Thistle  v.  Frostberg  Co.,  186. 


364  CASES  CITED. 

Thomas  v.  Oakley,  192. 
Thornborough  v.  Savage  Co.,  19S. 
Tibbetts  v.  Ah  Tong,  167. 
Titcomb  v.  Kirk,  110,  114. 
Tombstone  Co.  v.  Way  Up  Co.,  107. 
Townsend  v  Peasley,  108. 
Trihay  v,  Brooklyn  Co.,  189. 
Tucker  v.  Masser,  118. 

United  Merthyr  Co.,  in  re,  187. 
United  States  v.  Carpenter,  179. 
United  States  v.  Castillero,  22. 
United  States  v.  Gear,  192. 
United  States  v.  Iron  S.  Co.,  57. 
United  States  v.  Parrott,  191. 
United  States  v.  Williams,  324. 
Upton  V.  Larkin,  28,  32. 
Utley  V.  Clark-Gardner  Co.,  177. 

Van  Zandt  v.  Argentine  Co.,  29. 

Waters  v.  Stevenson,  188- 

Weese  v.  Barker,  48. 

West  Point  Co.  v.  Reymert,  192. 

Wheeler  v.  West,  157. 

Wright  V.  Dubois,  76. 

Willson  V.  Cleaveland,  52. 

Wilson  V.  Henry,  199. 

Wolfley  V.  Lebanon  M  Co.,  76,  92,  93. 

WoodruflFv.  N.  Bloomfleld  Co.,  127. 

Yo  Semite  Case,  12. 
Yunker  v.  Nicholls,  110, 114. 

Zollars  V.  Evans,  29. 


INDEX. 


Abandoiinient,  pa<;k51. 
Rclocfttion  after,  08. 
Of  Tunnel,  138. 

Abstract  of  Title— 

111  E.\iiiiiiiiing  Title,  159. 
On  Application  for  Patent,  259. 
On  Adverse  Claim,  295. 
Ackiiowlodjjiiuiit,  14.S. 

Fv  Individual,  140. 
By  Wife,  140. 
Bv  Corporation,  149. 
By  Attorney  in  Fact,  149. 

.icreagi— 

Of  Lode  Claim,  ^:^i. 
Of  Placer,  12iJ. 

Acts  of  roiipress:  See  Statutes- 
Text  of,  311. 
Repealed  Sections,  3fi9. 
Ejectment  Verdict,  300. 

Adverse  Claim,  292. 

Statute  Concerninp,  316. 
Land  Cifflce  Rules,  216. 
Form  of.  ?92. 

Complaint  Supporting,  301. 
Certificntc  of  Suit,  301. 
Effect  of  Failure  to  Assert,  76. 
Waivtr  of,  305. 

Affldavits— 

In  Land  District,  275. 
By  Agent,  277. 

Agent,  :;76. 

Of  Foreign  Corporation,  177. 
To  Pri 'Cure  Patent,  276. 

Airricultiiral  Lands,  132,  2.6. 

Aliens.  166. 

Angles,  107. 


366  INDEX. 

Annual  Labor,  52. 

Proof  of,  63. 
By  Tunnel,  138. 
On  Old  Lodes,  54. 
On  New  Lodes,  54. 
On  Placers,  123. 
Pending  Patent,  56,  20G. 
Proof  of,  by  Affidavit,  64. 
Computation  of  Time,  56. 
District  Rules,  7,  53. 

Apex,  38,  99. 

Application  for  Patent:  2iir-See  Forms. 

Land  Office  Rules,  213. 
Surveyor  General's  Rules,  231. 
Instructions  to  Applicants,  240. 
By  Agent,  276. 
On  Surveyed  Lands,  283. 

Appropriation,  27. 
Assay,  201. 
Assay  Office,  201. 
Association,  17,  18,  118. 
Attachment,  lb7. 
Boundaries — 

Staking,  39-41. 

Surveyor-General's  Rules,  231. 

Monuments  Control,  44. 

By-Laws,  172. 

Citizenship — 

Land  Office  Rules,  223. 
Form  of  Proof,  261. 
Statute,  312. 
Of  Corporation,  262. 

Claim- 
Acreage  of  Lode,  274. 
Acreage  of  Placer,  120. 
Legal  Status,  9,  11. 
Leneth,  .5,  15,  19,  22. 
Width.  20,  -^X 
Size  of  Placer,  118. 
Is  Real  Estate,  11. 

Coal  Lands,  32'. 

Coal  Mines  — 

Penal  Regulation  of,  184. 

Commissioner  of  Mines,  200. 


INDEX.  367 


ConTevanee,  141. 

Agre'c-muuts  for,  150-153. 
Ill  Examining  Title,  lt5'>. 
Form  of  Wurninty,  Uo. 
Form  of  (juil  Claim,  147. 
Acknowledgment,  146,  148, 149. 
Escrow,  15o. 

Corporations,  109. 

Citizenship  of,  262. 

Domestic,  1^9. 

Form  of  Articles,  169. 

First  Meeting,  171. 

By-Laws,  172. 

Iteports,  17r>. 

Foreign,  176. 

Ditch  Comiiany,  176. 

Acknowleilgments  by,  149. 

Costs.  303. 

Courts — 

Terms  of  U   S  ,  333. 
Tenu»of  Supreme,  333. 
Terms  of  District,  334. 
Terms  of  County,  337. 

Crevice,  34. 
Crimes,  180. 
Ciistoui,  S. 

Damages — 

For  Ditches,  109. 
For  Negligence,  188. 
Measure  of,  187. 
For  Dumping,  125. 

Dead  Work,  154. 

Deeds,  144. 

Departure — 

From  .Side  Lines, '.  1-94. 

Deposit.^,  9S. 

Deputy  Surveyor,  224,  'ZA\. 

Dip,  102. 

Of  Depo.sits,  98,  101. 

Discovery,  26—14. 

On  Old  Lodes,  21. 
Under  Present  Law,  26. 
In  Open  Cut,  27,  35. 
In  Tunnel,  27,  35. 
Gives  Title,  28. 
When  complete,  28. 
Bv  Drill  Hole,  30. 
Holds  60  days,  31. 


368  INDEX. 


DiscoTery  Claim,  IG. 

Discovery  Shaft- 
Statute  requiring,  2(1. 
Must  be  10  feet  deep,  26,  33. 
Must  be  on  Public  Uomaiu,  S2. 
And  on  the  Claim,  33. 
Time  to  Sink,  27,  47. 
In  Center,  23. 
In  Slide  or  Country,  34. 
Walls  in,  U. 

District  Rules,  3. 

Defects  of,  5. 

Extracts  from,  5. 

Decisions,  7. 

In  Ejectment,  7. 

Land  Office  Instructions,  209. 

Affecting  Labor,  7,  53. 

Ditches,  ino. 

Statute  concerning,  109. 
Decisions,  110. 
Location  Notice,  112. 
Location  Certificate,  112. 

Ditch  Company,  176. 

Drainage,  108. 

Dump,  115,  see  'lailings. 

Easements,  109,  114. 

Ejectment,  184. 

Form  of  Complaint,  301. 
Special  Verdict  in,  300. 

End  Lines,  145. 

Escrow,  153. 

Eureka  District,  330. 

Examination  of  Title,  158. 

Extensions,  50. 

Feeders,  106. 

Fees— 

Of  Surveyor  General,  241. 
In  Land  Office,  266. 

Float,  i:>l. 

Forcible  Dispossession,  183,  195. 

Forcible  Ent  ry,  186. 

Foreign  Coriiorations,  176. 

Ferfeiture,  see  Abandonment. 
To  Co-owner,  64. 
Form  of  Proof,  65,67. 
Of  Placers,  124. 


INDEX.  36  9 


KoriiiN — 

A<rkiu)wk'(ljfiiK'Hl,  1  lip,  ll'.i,  175. 

AgneiiK'Uls  to  .'^ell,  l"iO  1.5  '. 

AinciHlcd  Locution  (.'oi'tilicatf,  71,  To. 

Aniiuiil  liUl(or  Att'uluvit,  61. 

Amiiial  Iti'port  of  Cor)i(  ration,  175. 

Arlii'li-s  of  I  ncorporatiou,  IC'J,  17(). 

ny-Laws,  17J. 

Cerliricate  of  Stock  Puifl,  171. 

Contract  to  Sell  and  to  Huy,  1.52. 

DciiiKnatioii  of  A|ici!cy,  177. 

Dilcli  Incorporation,  17'i. 

Ditcli  Location  Ccrtitieate,  112. 

Ditch  Notice,  Hi. 

Kjoctment  romplalnt,  301. 

Escrow,  133. 

Forfelluro  Notices,  6().  67. 

Foreign  Corporation  Certificate,  177. 

Injunction  Notice,  194,  197. 

Lease,  155. 

Liens,  Clerk's  Certificate  of,  16-1. 

Lode  Location  Certificate,  46. 

Lode  Notice,  o2. 

Mill  Site  Location  Certificate,  128. 

iliiier's  Lien,  142 

Orj;aniztilion  Meeting.  171. 

Placer  Location  Certificate,  121. 

Placer  Notice,  120.  121.  , 

Prospector's  Notice,  31. 

Prospector's  Contract,  157. 

Protest,  *i7. 

Pnhlislier's  Proof,  67. 

(}nit  Claim  Deed,  liT. 

Keloeation  Ci'i'Iificnte,  71.  7:j. 

Sale  Subject  to  Kxaniination,  151. 

Snrvevor's  Lien,  111. 

Title  Bond.  150. 

Warranty  Deed.  145. 

Working  Contract  Sale,  151. 

Forms  In  Application  for  Patent,  244-281. 
.4.    Keqnest  for  OlBcial  Sm-vey,  244. 

B.  Order  for  Snrvev.  215. 

C.  Preliminary  Pli'il.  247. 

D.  Field  Notes.  248. 

JS.     .\pproval  of  Sm-vev,  2.52. 

J.'.    The  Final  Plat,  25:!. 

O.    Surveyor  (.Jeneral's  .\i>proval  of  Survey  and  Certificate 

of  Improvements,  2.58. 
H.     .\i)proved  Field  .Notes',  2.54. 

J.      Surveyor  General's  Certificate  to  Transcript,  254. 
A'..   Notice  of  Application,  25r). 
L.    Proof  of  Posting,  257. 

13 


370  INDEX. 

Forms  in  Application  Tor  Patent.— (lontiniicil. 

M.    ApplicatiDH,  ■_'riS. 

.v.     AV)striicl  (if  Titlo,  'lyj. 

O.     Proof  of  Citizcnsliip,    'iCI. 

P.     Proof  of  Non-AbiUidomiuMit,  2C:i. 

Q.      Piililisher's  Contract,  'idl. 

H.      l-'iiblic.atioii  Notice,  'iti'S. 

.S'.      Proof  of  Notice  KemaiiiiiiK  Posted,  2t)8. 

T.      Proof  of  Publication,   2('i9. 

U.    Proof  of  Suras  Paid,  26'.». 

V.     Application  to  Purchase,  '270. 

W.    Register's  Certificate  of  Posting,  '271. 

A'.    Register's  Final  Certificate  of  Entry,  '212. 

Y.    Artidavit  of  Lost  Receiver'.s  Receipt,  273. 

Z.    Powe;  of  Attorney,  276. 

A  A.    Mill-Site— Non-Mineral  Affidavit,  277. 

BB  Affidavit  of  use  for  Mining  Purposes.  278. 

00.  ■  Placer— Proof  of  No  Veins,  282. 

DD.  Application  for  Descriptive  Report,  283. 

EE.  Order  for  Descriptive  Report,  284. 

FF.  Descriptive  Report,  284. 

Forms  in  Adverse  Claim— 

GO.     Adverse,  '292. 

Exhibit  ''A."     Abstract  for  Adverse,  295, 

Kxhibit  "B."     Plat  for  Adverse.  295. 

UH.    Complaint  Supporting,  301. 

J  J.    Certificate  of  Suit,  304. 

Glossary,  339. 

Indian  Reservation,  179. 

Ini|.rovcmouts,  237,288,  295. 

Injunction,  190. 

Inspection,  197. 

Interference  of  Claims,  82. 

Jumpina:  Act,  183,  195. 

Land  Districts,  203,  338. 

Laud  Offices,  203. 

Land  Office  Uules,  206. 

Las  Animas  District,  330. 

Lease,  154. 

I'"orm  of,  155. 

Led>,'C,  %. 
License,  15G, 

Of  the  United  States,  9. 

Liens,  141. 

How  Affijcted  by  Patent,  141. 
Judgment,  141,  163. 
Miners'  141. 
Certificate  of,  164. 


INDEX.  371 


Limitalioiiit.  1<.)0. 
Loi'iition,  'ill. 

Ddinilioii  of,  31. 

or  Old  l-orl»'S,  21. 

or   NfW    l.cxlos,    '-'Ik 

or  riiu-crs.  120. 

Diagram  of,  13. 

Not  CoveiitiL'  Vein,  :iS,  in,  'M. 

Land  Omue  UuUs.  210. 

Witlionl  Snrvey,  :>S. 

Location  Certilloiite— 

Statute  Reiiniiing,  ■I.'). 
Korm  or  Lode,  Iti. 
Form  or  Placer.  121. 
Form  or  Mill  Site,  128, 
Form  f)r  Water  llight,  112. 
Without  Survey,  :W. 
Surveyor  General's  Rules,  2:!1. 

Location  Notice- 
On  Lode,  32. 
On  Diteh,  112. 
On  PhK'er,  12<l,  121. 

Location  Stalie,  32. 

Removal  of,  183. 

Location  Monnniont,  2:^. 
LodcK — 

Length  or  OM  Claims.  IT,,  1<I. 

Pre.sent  Length,  22. 

Width,  20. 

Discovery,  21,  26, 

Location,  21,  21,  26-1-1. 

Record,  45. 

Diagram,  37,  1.3. 

Intt'rferenco,  79,82. 

Witliin  Placer,  122. 

Cross,  yii. 

Ivocated  Over  Placer  or  Mill  Site,  lai. 

Lode.s,  Veins  and  Ledges,  95,  See   VeiTis . 

Land  Office  Rules,  20«. 

Maiiilrttorj    Writ,  19.'). 

McHMirc  of  Daniii^es,  1.S7. 

Mill  Site,  12.S. 

Aiiplication  ror  Patent  on,  277. 
Must  he  Non-Mineral,  12s. 
IXH-ation  tVrtideate,  12S. 
Land  Olliee  Rules,  222. 
Non-iMiiieDil  Allidavit,  277. 


372  INDEX 

Miner's  Lien,  111. 

Miner's  Rights,  D. 

Mining  Claim:  Sec  Claim. 

Mining  IMstrict:  Z—See  District  Rules. 

Negligence,  188. 

Notice— 

Of  Forleituro,,  06. 

Of  Application  for  Patent,  2oC. 

Ore  Buyers,  180. 

Ore  Stealing,  182. 

Parallel  Veins,  83,  85. 

Patents,  74,  162. 

Overlapping,  162. 

Application  for,  244. 

Land  Office  Rules,  206. 

Penal  Provisions,  180. 

Petroleum,  118. 

Placer,  110. 

What  Constitutes,  117. 
Location  of,  120. 
Location  Certificate,  121, 
Location  Notice,  121, 
Size  of,  lis, 

Association  to  Take,  118. 
Statutes,  116. 
Lodes  Within,  122. 
Annual  Lal>or  on,  123. 
Patent  for,  118,  122,  279. 
Forfeiture  of,  124. 
Land  Office  Pvtiles,  218. 

Possession — 

Without  Record,  48-")0. 
As  Notice,  165. 
In  Ejectment,  18r>. 

Possessory  ('l.iiui,  0,  11. 

Power  of  Attorn(;y,  276. 

Proof— 

OfCitizeaship,  201. 
Of  Labor,  61. 

Prospt'cfing,  157. 

Form  of  C(jntract,  157. 

Protest,  307. 
Publication,  67,  261. 
Keal  Estate,  13. 
Receiver's  Receipt,  81,  272. 
Cancellation  of,  81. 


INDEX  373 


Record,  45. 

I)(.-liilitii>ii  of,  4."). 
Possi'ssioii  Without  Record,  60. 
Statute  Kcquiiing,  45. 
Priority.  47. 
Kcliition,  76. 

l{f  local  ion  — 

Ol  Abandoned  Claim,  68. 

By  ('o-uwiRT,  00. 

Hy  the  Owner.  70. 

i''orni  of  Certificate,  71,  73. 
Iteplcviii,  IS'.i. 
Kijfht  of  Way,  114 

To  Cross  Lode.s.  88. 

To  Ditches,  109. 
Itock  ill  Phirp,  96. 
Scliool  riaiiiis,  13. 
School  I. anils.  V.V-<. 
Si-hool  oC  .MiiiPN,  202. 
Sovcraiii'c.  1:51. 
Slile  IJiii-s— 

Vein  Leaving,  91-'J4. 

Side  Veins— 

In  Old  Location.s,  8.1 

In  New  liOcation.s.  85. 
Soldier's  Claims,  14. 
Spurs,  lOii. 
Stakes,  2K-1 1. 

Statute  Kequirinp,  26. 

Center  Posts,  10. 

Size  of,  42. 
Sttttiitfs— 

Full  Text  of  Conp:ressionaI,  Sll . 

IJepealed  Coiifrn-ssioniil,  :'.09. 

Fnl!  Text  of  Colorado,  324. 

Index  of  Colorado,  Xi\. 

Tinil.er  Act,  323. 

I'laeerAet,  llC,  122,  12.".. 

11)0  foot  Act,  15. 

1  lOo  foot  Act,  15. 

l.Viot'oot  .\ct,  '.2. 

ir.i'((  foot  Act.  1.5. 

3()(Xi  foot  Act.  15. 
Sundiiy,  J'.is. 

Supreme  Court,  Terni.s  of,  3 ':'., 
Snrface— 

.AcreftRC  of,  120. 

Mininv' under  Improvements,  Kto. 

.'fcvcrancc,  1:'>1. 

St'liurate  Ownci-sliip,  l:'.l. 
Siirfare  Iinprovenieuts.  130.  , 


374  INDEX. 

Survey — 

For  Patent,  282. 

For  .\(tvcr.sc',  .i'XK 

Vov  l.ociitioii,  38. 

Ofliciiil,  'ill. 

With  Iiispt'ction-,  T.iT. 

On  lilxaniinatioii  of  Title,  158. 

Prcsumoil  to  Cover  Vein,  8:i. 

SurTcyor  (Jt^ioral's  Knies,  231. 

Table  of  Cases,  :!.')(>. 

Tailliiifs.  12."). 

The  Debris  Cases,  127. 

Taxes,  K)'.i. 

Terms  of  Court,  333. 

Timber,  323. 

Time,  297. 

Title- 
Abstract  of,  159,  250,  299. 
Kxanii  nation  of,  158. 
Possessory,  9-13. 
Patented,  74. 

Title  Hoiid,  150. 

Town  Sites.  133. 

Trails,  11 1. 

Trespass,  187. 

TiiiiTiel.  131. 

Discovery  in,  27,  35. 

Record  of,  137. 

Abandonment  of,  138. 

Companies,  169. 

Labor  in,  138. 

Land  Office  Knle,  211. 

Statutes,   131. 
Variations,  107. 
Veins:  .See  Lodex— 

Irregularity  of,  82. 

Side,  83,  85. 

Uniting  on  Dip,  90. 

Leaving  Location,  91. 

Lodes,  Veins  and  Ledges,  95. 

Widertlian  Claim,  91 

Ventilation,  184. 

Walls,  105. 

In  Discovery,  34. 

AVater:  tiec  DitchcH,  Appropriation,  Drainage. 

Warranty  Deert,  145. 


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